UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 


SCHOOL  OF  LAW 
LIBRARY 


THE    POWERS    AND    DUTIES 


NOTARIES  PUBLIC 


JUSTICES  OF    THE    PEACE 


MASSACHUSETTS. 


BY 

W.   M.   SEAVEY, 

AUTHOR  OF    "THE   MASSACHUSETTS   TOWN   OFFICER. 


BOSTON: 
LITTLE,  BROWN,  AND  COMPANY. 

1894. 


T 
1814 


Copyright,  180$, 
By  Little,  Bbowh,  and  Compast. 


©Lnitorrstto  ^Jrcss : 
Johs  Wii.m.n  am>  Son,  Cambridge,  i   9.A 


PREFACE. 


The  author  has  endeavored  in  the  present  work 
to  state  in  a  concise  form  all  the  provisions  of 
law  which  pertain  to  the  powers  and  duties  of 
notaries  public  and  justices  of  the  peace  in  this 
Commonwealth. 

The  powers  of  notaries  public  with  respect  to 
the  protest  of  commercial  paper  are  derived  prin- 
cipally from  the  cases  decided  by  the  Supreme 
Judicial  Court.  These  cases  have  been  carefully 
selected,  and  to  them  have  been  added  decisions 
from  some  of  the  important  cases  on  the  subject 
in  other  jurisdictions,  combined  with  suggestions 
from  the  practical  experience  of  notaries  public 
and  bank  officers  in  this  Commonwealth. 

The  other  powers  of  notaries  public,  and  those 
of  justices  of  the  peace,  are  almost  wholly  statu- 
tory. The  statutes  relating  to  these  subjects  have 
been  collected,  and  to  these  have  been  added  selec- 
tions from  the  latest  decided  cases  of  the  Supreme 
Judicial  Court,  wherever  these  tended  to  make  the 


vi  PREFACE. 

meaning  of  the  statutes  clearer,  and  a  selection  of 
appropriate  forms. 

The  Index  has  been  made  very  full,  so  that  one 
may  readily  find  the  provisions  relating  to  the  sub- 
jects treated  of  in  the  book. 

W.  M.  S. 

Boston,  December,  1893. 


TABLE  OF  CONTENTS. 

(the  figures  refer  to  the  pages.) 


PART   I. 

NOTARIES   PUBLIC. 


CHAPTER  I. 

Page 

Origin  of  the  Office  of  Notary  Public    ...  1 

CHAPTER   II. 

Method  of  Appointment 4 

Expiration  of  Appointment 7 

Seals 8 

CHAPTER  III. 

The  Protest  of  Commercial  Paper 10 

Foreign  Bills l0 

Must  be  for  Non-acceptance  as  well  as  for 

Non-payment 11 

Inland  Bills  and  Promissory  Notes      ...  12 

Method  of  Protesting 13 

Presentment  and  Demand 13 

(a)  When  necessary 13 

(b)  Who  may  make 14 

(c)  At  what,  time  to  be  made 15 

(d)  How  and  where  to  be  made 20 


Mil  TABLE   OF    CONTENTS. 

Page 

Acceptance 22 

Noting 23 

Notice 23^ 

(a)  Who  may  give 23 

(b)  When  necessary 24 

(c)  Form  of  notice 25 

(d)  When  to  be  made  and  given 27 

(e)  Where  and  how  to  be  given 29 

(f)  To  whom  to  be  given 34 

Diligence 35 

Records 37 

Extending  the  Protest 37 

Fees  for  Protesting 41 

Liability  of  Notaries 42 

Rates  of  Damages  on  Protested  Bills      .     .  42 

CHAPTER    IV. 

Powers  Given  by  Statute. 

Acknowledgments  of  Deeds 44 

Administration  of  Affidavits 45 

Foreclosure  Affidavits 46 

Opening  of  Safety  Deposit  Vaults    ....  46 

Proofs  in  Insolvency 47 

Savings  Bank  Affidavits 48 


PART   II. 
JUSTICES   OF   THE   PEACE. 

CHAPTER  I. 

Origin  and  Appointment. 

Origin 51 

Appointment 52 


TABLE   OF   CONTENTS.  IX 

Page 

May  hold  Othf.r  Offices 56 

Falsely  Assuming  to  be  a  Justice    ....  56 

CHAPTER   II. 

Depositions. 

Method  of  Taking 58 

Summoning  of  Witnesses G7 

Depositions  to  perpetuate  Testimony   ...  69 

Depositions  by  Parties 72 


Fei 


73 


CHAPTER   III. 


Calling  of  Meetings. 

Corporations 74 

Aqueduct  Corporations '5 

Fire  Disi  ricts 75 

General  Fields 76 

Meeting-house  Proprietors 76 

Private  Ways  and  Bridge  Proprietors     .     .  77 

Religious  Societies 77 

Trustees  of  Methodist   Episcopal  Churches  78 

Social  Library  Corporations 78 

Town  Meetings 79 

Watch  Districts         81 

Proprietors  of  Wharves  and  Common  Lands  82 

CHAPTER  IV. 

Acknowledgment  of  Deeds. 

In  General 83 

Whin  Grantor  refuses  to  Acknowledge  .     .  84 
Acknowledgment  of  Deeds  conveying   Prop- 
erty outside  of  the  Commonwealth  .     .  88 

Of  Shares  of  Stock 89 

Fees ?0 


X  TABLE    OF   CONTENTS. 

CHAPTER  V. 

Page 
Issuing  of  Warrants. 

In  Criminal  Cases 91 

(a)  Warrants 91 

(b)  Bail 93 

In  other  Cases 94 

(a)  Entry  by  Board  of  Health 94 

(b)  Entry  of  Premises  of  Gas  Consumer      ...  96 

(c)  Search  for  Liquor  illegally  kept 97 

(d)  Impounding  Beasts 102 

(e)  Infected  Articles 106 

(f)  Lost  Goods,  Appraisals 107 

(g)  Removal  of  Sick  Persons 109 

(h)   Fees 110 

CHAPTER  VI. 

Oaths  and  Affidavits. 

In  General Ill 

Age  and  Schooling  Certificates ill 

Collectors  of  Taxes 112 

Notaries  Public  and  Bank  Affairs  .     .     .     .  112 

Notices  of  Sales  of  Pews 113 

Officers  of  Religious  Societies 113 

Pedlers 113 

Railroad  Police 114 

Inspection  of  Pedlers'  Licenses 114 

Fees 114 

CHAPTER  VII. 

General  Powers  and  Duties. 

Appointment  of  Appraisers 115 

Arbitration 116 

Arrest  on  Mesne  Process 118 


TABLE   OF   CONTENTS.  XI 

Page 

Powers  as  Conservators  of  the  Peace     .     .  119 

Not  to  buy  certain  Demands  for  Collection  123 

Complaints  under  Dog  Laws 123 

Determination  of  Amount    due   for   Equity 

of  Redemption 127 

Foreclosures  of  Mortgages 127 

Habeas  Corpus 128 

Insolvency  Proofs     132 

Inspection  of  Druggists'  Books  as  to  Liquor 

Sales 133 

Limited  Partnership  Acknowledgments     .     .  133 

Marriages 133 

Nominations  of  Guardians 135 

Removal    of  Gates,  etc.,  on   Town  and  Pri- 
vate Ways          I36 

Witnesses 136 

Index *"*1 


TABLE  OF  CASES. 


(the  figures  refer  to  the  tages.) 


Page 
118 
22 

64 
36 


Abbott  v.  Dexter 
Arnold  v.  Dresser 

Bacon  v.  Rogers 

Bank  of  America  v.  Shaw 

Bank  of  Orleans  v.  Whitte- 

niore  21 

Bank  v.  Ayers               13,  33,  37 

v.  Blaiu-hard  28 

v.  Buttrick  32 

v.  Caverl  v  17 

v.  Cox  21 

v.  Fairbrother         30,  33,  35 

v.  Fullerton  60 

v.  Hammatt  32 

v.  Hathaway  35 

v.  Lafiin  26 

v.  Merchants'  Bank  17 

v.  Parker  42 

v.  Rice  22 

v.  Townsley  32 

v.  Warner  24 

v.  Willard  17,  20 

r.  Williams  11,  15 

r.  Willis  22 

Blakeley  v.  Grant  36 

Bliss  v.  Nichols  34 

Bonner  v.  New  Orleans  31 

Brown  v.  King  63 

Burlingame  v.  Foster  31 

Cabot  Bank  v.  Warner  24 

Choteau  v.  Webster  29 


Page 
City  Bank  at  Providence  v. 

Fullerton  60 

Clark  v.  Eldridge  26 

Colt  v.  Barnard  13,  19,  28 

Commonwealth  v.  Brennan      92 

v.  Foster  92 

v.  McGahey  120 

v.  Moore  129 

v.  O'Hanlon  92 

v.  Taber  92 

Converse  v.  Johnson  19 

Cribbs  v.  Adams  15 

Culver  v.  Benedict  69 

Davis  v.  Smith  136 

Eagle  Bank  v.  Hathaway  35 
Exchange  Bank  v.  Rice  22 

Fall  River  Bank  v.  Willard     17, 
20 
Farnsworth  v.  Allen  10 

Farnum  v.  Buffum  44 

V.  Fowle  17 

Field  v.  Nickerson  19 

Freeman  v.  Boynton  17,  21 

Gilbert  v.  Dennis  25,  28 

Grafton  Bank  v.  Cox  21 

Crand  Bank  v.  Blanchard  28 
Granite  Hank  o.  Ayers  13,  33,  37 
Grosvenor  v.  Stone  25 


XIV 


TABLE   OF   CASES. 


Hale  v.  Silloway 
Henry  v.  Jones 
Hitchings  v.  Ellis 
Hobbs  v.  Straine 
Horton  v.  Wilde 
Housatonic  Bank  v 


Page 

65 

17 

64,67 

37 

118 

Laflin       26 


Hunt  v.  Lowell  Gas  Light  Co.  61 
Hutcheon  v.  Mannington  9 


Importers'  &  Traders'  Bank 
v.  Shaw  36 


Johnson  v.  Brown  12,  32 

Jones  v.  Fales  17 

Judd  v.  Tryon  128 

Kinsley  v.  Robinson  24 


Learned  v.  Riley  83 

Lenox  v.  Leverett  11,  29 

Lincoln  &  Kennebec  Bank 

v.  Hammatt  32 

Littlehale  v.  Dix  65 

Livesey  v.  Bennett  58 


Marvin  i 

.  Raigan 

64 

Mason  v. 

Rumsey 

23 

May  v.  Coffin 

24 

Mechanics'  Bank  v. 

Mer- 

chants 

'  Bank 

17 

Milford  i 

.  Worcester 

134, 

135 

Morse  v. 

Cliamberlin 

30 

Murphy 

v.  Murphy 

46 

Ocean  Bank  v.  Williams  11,  15 

O'Neil  i'.  Webster  84 

Opinion  of  Justices  3,  5,  9 

Orr  v.  Lacey  9 


Park  v.  Page  28 

Perkins  o.  Franklin  Bank        16 


Pierce  v.  Cate 

v.  Indseth 

v.  Kittredge 
Pinkham  v.  Macy 
Porter  v.  Judson 
Prescott  Bank  v.  Caverly 


Page 
14 
9 
22 
27 
36 
17 


Rand  v.  Hubbard 
Rice  v.  Wesson 


15 

18,  20,  28 


Salem  v.  Eastern  R.  R. 
Sanger  v.  Stimpson 
Seaver  v.  Lincoln 
Shaw  v.  McGregory 
Shaylor  v.  Mix 
Shed  v.  Brett 
Shelburne   Falls   Bank 

Townsley 
Simpson  v.  Carleton 
Smith  v.  Bowditch 

v.  Whiting 
Stanton  v.  Blossom 
Stevens  v.  Taft 


Co. 


120 
26 
19 
65 
31 
26,36 

32 
64 
69 
26 
24 
75 


Talbot  v.  National  Bank  of 

the  Commonwealth  33 

True  v.  Collins  31 


Union  Bank  v.  Willis 


22 


Wachusett  National  Bank 

v.  Fairbrother  30,  33,  35 

Wamesit  Bank  v.  Buttrick  32 

Ward  v.  Allen  22 

Warder  ».  Tucker  25 

Warren  Bank  v.  Parker  42 

Webber  v.  Matthews  34 

Wesson  v.  Newton  118 

Wheeler  v.  Field  21 

Wyman  v.  Adams  14 

Young  v.  Capen  60 

v.  Durgin  29 


PART    I. 
NOTARIES    PUBLIC. 


PART   I. 
NOTARIES   PUBLIC. 


CHAPTER   I. 
ORIGIN  OF  THE  OFFICE  OF   NOTARY  PUBLIC. 

§  1.  The  office  of  notary  public  is  of  very  ancient 
origin,  and  has  been  known  to  the  majority  of  the 
Christian  nations  for  hundreds  of  years.  In  those 
countries  which  have  taken  the  Roman  law  as  the 
basis  of  their  legal  system,  the  duties  of  notaries 
public  are  of  the  greatest  importance  and  very 
varied  in  their  character,  while  in  countries  like 
the  United  States  and  England,  which  use  the  com- 
mon law  of  England,  the  duties  are  much  more 
limited.  As  notaries  public  are  found  in  nearly 
all  parts  of  the  civilized  world,  they  were  formerly 
of  very  great  use  to  shipmasters,  merchants,  and 
other  persons  having  dealings  with  foreign  nations, 
in  attesting  writings  and  in  certifying  to  acts  done 
by  them  or  in  their  presence,  which  might  require 
to  be  proved  in  foreign  countries.  Now,  however, 
the  office  is  of  less  importance  in  its  international 

1 


2  NOTARIES   PUBLIC. 

relations  than  it  was  formerly.  At  the  present 
time  states  and  countries  have  defined  by  statutes 
the  majority  of  the  acts  which  notaries  of  foreign 
countries  and  of  places  outside  of  their  own  juris- 
diction, as  well  as  those  of  their  own  appointment, 
may  perform,  and  the  effect  of  these  acts  and  the 
uses  which  may  be  made  of  notarial  certificates 
within  the  respective  jurisdictions  of  the  states  and 
countries  have  also  been  defined  by  statute. 

§  2.  In  England  notaries  public  were  originally 
appointed  by  the  authority  of  the  Pope  of  Rome,  but 
since  the  passage  of  the  Statute  of  25  Hen.  VIII., 
ch.  21,  they  have  been  appointed  by  the  Court  of 
Faculties  of  the  Archbishop  of  Canterbury. 

§  3.  In  Massachusetts  the  first  mention  that  is 
made  of  the  office  is  under  the  Charter  of  the  Col- 
ony of  Massachusetts  Bay,  where  notaries  public 
were  elected  by  the  General  Court,  which  prescribed 
the  oath  to  be  taken  by  them  and  some  of  their 
duties  and  established  their  fees  and  the  form  of 
their  seals,  which  were  engraved  at  the  expense  of 
the  Colony.  They  were  also  exempted  from  militia 
service. 

§  4.  Until  the  year  1720  notaries  public  were 
appointed  by  the  Governor  and  Council,  in  the  same 
manner  as  judicial  officers  were  appointed.  But  in 
that  year  the  House  of  Representatives  contended 
that  notaries  public  should  be  elected  by  the  Gen- 
eral Court,  in  accordance  with  the  clause  in  the 
Charter  which  granted  power  to   that  Court  "  to 


ORIGIN    OF   THE   OFFICE   OF   NOTARY    PUBLIC.         3 

name  and  settle  annually  all  civil  officers"  except 
those  otherwise  provided  for  in  the  Charter,  sub- 
ject to  the  approbation  of  the  Governor.  This 
claim  was  conceded,  and  afterwards  notaries  pub- 
lic were  elected  by  the  Council  and  House  of  Rep- 
resentatives in  concurrence. 

§  5.  No  Provincial  statute  was  passed  which 
defined  any  of  the  duties  of  notaries  public,  al- 
though their  fees  were  established  by  statute.  The 
only  duties  which  they  performed  under  the  Prov- 
ince Charter  were  those  which  were  attached  to 
the  office  by  custom. 

§  G.  The  Constitution  of  the  Commonwealth  as 
originally  adopted  provided  that  notaries  public 
should  be  chosen  annually  by  joint  ballot  of  the 
Senators  and  Representatives  in  one  room;  but 
this  was  changed  by  the  Fourth  Amendment  to 
the  Constitution,  so  that  now  notaries  are  ap- 
pointed by  the  Governor  in  the  same  manner  as 
judicial  officers  are  appointed,  and  they  hold  their 
offices  for  seven  years. 

§  7.  At  the  present  time  notaries  public  in  this 
Commonwealth  arc  empowered  by  statutes  to  per- 
form various  acts  in  addition  to  the  presentment 
and  protest  of  foreign  bills  of  exchange  and  the 
noting  and  extending  of  marine  protests,  which  are 
attached  to  the  office  of  notary  public  by  custom.1 

1  Opinion  of  the  Justices,  150  Mass  586. 


NOTARIES    PUBLIC. 


CHAPTER    II.      • 

METHOD    OF   APPOINTMENT. 

§  8.  Notaries  public  shall  be  appointed  by  the 
Governor  in  the  same  manner  as  judicial  officers 
are  appointed,  and  shall  hold  their  offices  during 
seven  years,  unless  sooner  removed  by  the  Gover- 
nor, with  the  consent  of  the  Council,  upon  the 
address  of  both  houses  of  the  legislature.1  They 
shall  have  jurisdiction  and  the  right  to  act  in 
any  and  all  of  the  counties  of  the  Common- 
wealth. And  this  provision  applies  to  all  nota- 
ries public  appointed  before  the  passage  of  this 
act  (March  2,  1891),  as  well  as  to  those  appointed 
after  it.2 

§  9.  There  is  no  statute  prescribing  the  qualifi- 
cations which  persons  must  have  to  be  appointed 
notaries  public.  The  requisites  which  are  estab- 
lished by  custom  are  that  the  applicant  for  the 
office  of  notary  public  must  be  a  citizen  of  the 
United  States,  a  resident  of  Massachusetts,  more 
than  twenty-one  years  of  age,  of  high  standing  and 
character,  and   he  must  not  be  an  officer  or  em- 

1  Mass.  Const.  Amendments,  Art.  IV. 

2  Sts.  1891,  ch.  38. 


METHOD    OF    APPOINTMENT.  5 

ployee   of    a   national    bank.      A   woman   is   not 
eligible  for    the   office.1 

£  10.  A  blank  application  similar  to  the  fol- 
lowing form  may  be  obtained  at  tbe  office  of  the 
Secretary  of  State.  As  applications  for  the  office 
of  notary  public  are  scrutinized  very  carefully,  the 
strongest  possible  reasons  should  be  alleged  to 
show  the  necessity  for  the  appointment,  and  the 
applicant  should  secure  the  names  of  prominent 
men  as  signatures  to  the  application,  so  that,  if 
need  be,  they  could  urge  the  appointment  in 
person. 

Form  of  Application  for  the  Office  of  Notary  Public. 

COMMONWEALTH  OF  MASSACHUSETTS. 

To  His  Excellency  the  Governor  : 

We  hereby  recommend  [here  state  applicant's  name 
in  full],  of  [residence,  including  street,  number,  and 
town  or  city],  [business  address,  including  street,  num- 
ber, and  town  or  city],  for  appointment  to  the  office  of 
notary  public  for  the  Commonwealth  of  Massachusetts. 

He  is  a  citizen  of  the  United  States,  a  resident  of 
Massachusetts,  more  than  twenty-one  }'ears  of  age.  and 
of  high  standing  and  character.  He  is  not  an  officer  or 
employee  of  a  national  bank. 

[Strong  reasons  should  be  given  to  show  necessity 
for  appointment,  —  for  example,  that  the  applicant  has 

1  Opinion  of  the  Justices,  150  Mass.  586. 


6  NOTARIES    PUBLIC. 

considerable  negotiable  paper  to  protest,  and  that  he 
has  occasion  to  take  acknowledgments  of  conveyances 
of  real  estate  outside  of  the  State.] 


[Signatures  of  those  recommending  the  applicant.] 


189 


§  11.  When  the  blanks  in  the  application  have 
been  suitably  filled,  it  must  be  deposited  in  the 
executive  office  at  the  State  House.  The  applicant 
will  be  notified  in  due  season,  should  his  applica- 
tion be  acted  upon  favorably. 

§  12.  Every  person  appointed  by  the  Governor  to 
the  office  of  notary  public  shall  be  notified  by  the 
Secretary  of  the  Commonwealth  of  his  appointment, 
and  if  he  does  not,  within  three  months  from  the 
date  of  such  appointment,  take  and  subscribe  the 
oaths  required  to  qualify  him  to  execute  the  duties 
of  the  office  to  which  he  has  been  appointed,  his 
appointment  shall  be  null  and  void,  and  the  Secre- 
tary shall  forthwith  notify  him  thereof  and  request 
him  to  return  his  commission  to  be  cancelled,  and 
shall  also  certify  said  facts  to  the  Governor.1 

§  13.  Every  person  appointed  to  the  office  of 
notary  public  shall,  before  the  delivery  of  his  com- 
mission, pay  to  the  Secretary  of  the  Commonwealth 
a  fee  of  five  dollars.2 

i  Tub.  Sts.  ch.  21,  §4.  -  Ibid.,  §6 


METHOD    OF   APPOINTMENT.  7 

§  14.  The  following  oath  shall  be  taken  by  every 
person  appointed  to  the  office  of  notary  public,  be- 
fore he  shall  enter  on  the  duties  of  his  office,  to 
wit :  — 

"  I,  A.  B.,  do  solemnly  swear  that  I  will  bear  true 
faith  and  allegiance  to  the  Commonwealth  of  Mas- 
sachusetts, and  will  support  the  Constitution  thereof. 
So  help  me  God." 

Provided,  That  when  any  person  shall  be  of  the 
denomination  called  Quakers,  and  shall  decline 
taking  said  oath,  he  shall  make  his  affirmation 
in  the  foregoing  form,  omitting  the  word  "  swear," 
and  inserting  instead  thereof  the  word  "  affirm," 
and  omitting  the  words  "  So  help  me  God,"  and 
subjoining  instead  thereof  the  words,  "  This  I  do 
under  the  pains  and  penalties  of  perjury."  1 

EXPIRATION    OF    APPOINTMENT. 

§  15.  The  Secretary  of  the  Commonwealth  shall 
send  by  mail  to  every  person  commissioned  as  a 
notary  public  a  notice  of  the  time  of  the  expira- 
tion of  his  commission,  not  more  than  thirty  nor 
less  than  fourteen  days  before  such  expiration.2 

§  16.  A  person  who  presumes  to  act  as  a  notary 
public  after  the  expiration  of  his  commission,  and 
after  receiving  notice  of  such  expiration,  sent  as  is 

1  Mass.  Const.  Amend.,  Art.  VI. 

2  Pub.  Sta.  ch.  15,  §  14. 


8  NOTARIES   PUBLIC. 

stated  in  the  preceding  section,  shall  be  punished 
by  fine  of  not  less  than  one  hundred  nor  more 
than    five    hundred  dollars.1 

§  17.  On  the  death,  resignation,  or  removal  from 
office  of  a  notary  public,  his  records  and  official 
papers  shall  be  deposited  in  the  office  of  the  clerk 
of  the  courts  in  the  county  in  which  he  resided,  or, 
in  the  county  of  Suffolk,  in  the  office  of  the  clerk  of 
the  Superior  Court  for  Civil  Business.2 

§  18.  A  notary  public  who  neglects  for  three 
months  after  his  resignation  or  removal  from  office 
so  to  deposit  his  records  and  official  papers  shall 
forfeit  a  sum  not  exceeding  five  hundred  dollars.3 

§  19.  If  the  executor  or  administrator  of  a  de- 
ceased notary  public  neglects  for  three  months 
after  his  acceptance  of  such  office,  so  to  deposit  in 
the  clerk's  office  the  records  and  official  papers  of 
the  deceased  which  come  into  his  hands,  he  shall 
forfeit  a  sum  not  exceeding  five  hundred  dollars.4 

§  20.  Whoever  knowingly  destroys,  defaces,  or 
conceals  the  records  or  official  papers  of  a  notary 
public  shall  forfeit  a  sum  not  exceeding  one 
thousand  dollars,  and  be  liable  in  damages  to  any 
party  injured  thereby.5 

SEALS. 

§  21.  By  custom,  a  notary  public  must  have  an 
official  seal,   and    copies  of   his  records   must   be 

1  Pub.  Sts.  ch.  205,  §  24.  2  Ibid.,  ch.  18,  §  2. 

3  Ibid,  §  3.  4  Ibid.,  §  4.  5  Ibid,  §  5. 


METHOD    OF    APPOINTMENT.  9 

certified  under  his  seal.1  The  seal  used  by  notaries 
public  in  this  Commonwealth  consists  of  a  stamp 
which  makes  an  impression  on  the  paper  which  is 
to  receive  the  seal,  and  which  contains  the  name 
of  the  notary  and  the  designation  of   his  office. 

§  22.  Judicial  notice  is  taken  of  the  seal  of  a 
notary  public  as  an  officer  recognized  by  the  com- 
mercial world.2  Therefore  the  signature  of  a  notary 
to  an  instrument  going  to  a  foreign  country  or  to 
another  state,  must  be  authenticated  in  some  way, 
usually  in  the  case  of  a  foreign  country  by  the  con- 
sul of  that  country.3  But  in  case  of  a  protest  made 
upon  the  non-acceptance  or  non-payment  of  com- 
mercial  paper,  the  notarial  seal  is  sufficient  in  itself, 
without  being  authenticated.4 

1  Opinion  of  the  Justices,  150  Mass.  589. 

2  1  Greenl.  Evid.,  15th  ed.,  §  5. 

8  Ilutchieson  v.  Mannington,  6  Ves.  823. 

*  On-  r.  Lacy,  4  McLean  (U.  S.),243;  Pierce  v.  Indseth,  106 
f   S.  546. 


10  NOTARIES   PUBLIC. 


CHAPTER   III. 

THE   PROTEST   OF   COMMERCIAL   PAPER. 

§  23.  When  a  bill  of  exchange  is  presented 
for  acceptance  or  for  payment,  or  when  a  prom- 
issory note  is  presented  for  payment,  and  it  is 
dishonored,  (i.  e.  when  such  acceptance  or  pay- 
ment is  refused,)  a  solemn  declaration,  written 
by  a  notary,  must  be  made  stating  the  fact  of  the 
non-acceptance  or  non-payment,  the  reason  for  it 
if  any,  and  that  the  bill  or  note  is  protested.  This 
declaration  is  known  as  a  protest.  Its  object  is  to 
fix  the  liability  of  the  indorsers  and  other  parties 
to  the  bill.1 

FOREIGN    BILLS. 

§  24.  The  most  important  duties  by  far  of  nota- 
ries public  are  those  which  relate  to  the  protest 
of  commercial  paper.  In  the  case  of  the  dishonor 
of  foreign  bills  of  exchange,  which  are  bills  drawn 
in  one  country  or  state  upon  a  person  residing  in 
another  country  or  state,  the  notarial  protest  is 
the  sole  way  in  which  the  dishonor  can  be  proved. 

1  Smith's  Mercantile  Law,  .'3d  Am.  ed.,  327, 


THE    PROTEST    OF    COMMERCIAL    PAPER.  11 

It  cannot  be  shown  by  witnesses,  or  in  any  other 
way.  And  this  is  true  as  well  when  the  protest 
is  for  non-acceptance  as  when  the  instrument  is 
protested  for  non-payment.1 

MUST   BE    FOR   NON-ACCEPTANCE   AS   WELL   AS    FOR 
NON-PAYMENT. 

§  25.  A  holder  of  a  foreign  bill  of  exchange 
must  cause  the  bill  to  be  protested  for  non-accept- 
ance if  it  requires  acecptance,  and  at  its  maturity 
he  must  also  cause  it  to  be  protested  for  non-pay- 
ment by  the  drawee,  and  he  must  give  notice  of 
the  non-acceptance  and  non-payment  to  such  ante- 
cedent parties  to  the  bill  as  he  intends  to  resort 
to  for  payment.  Nor  are  the  duties  of  the  holder 
varied  if  the  bill  be  accepted  and  paid  by  a  friend 
for  the  honor  of  the  holder.2 

§  2(3.  The  custom  in  Massachusetts  is,  if  a  bill 
of  exchange  requires  acceptance,  to  cause  it  to  be 
protested  if  it  is  not  accepted.  Then,  if  the  owner 
of  the  bill  is  near  enough  so  that  he  may  be  com- 
municated with  before  the  time  for  payment  of  the 
bill,  he  is  consulted  as  to  whether  he  wishes  the 
bill  to  be  presented  for  payment  and  protested  in 
case  of  non-payment.  If  the  owner  of  the  bill  is 
so  far  away  that   it  would  be  impossible  to  hear 

1  Ocean  Bank  v.  Williams.  102  Mass.  HI. 

2  Leuux  v.  Leverett,  10  Mass.  1. 


12  NOTARIES    PUBLIC. 

from  him  before  the  maturity  of  the  bill,  it  is  cus- 
tomary to  present  the  bill  for  payment,  and  to 
protest  it  for  non-payment  as  well  as  for  non- 
acceptance. 

INLAND    BILLS    AND   PROMISSORY   NOTES. 

§  27.  In  the  case  of  inland  bills  of  exchange, 
which  are  those  in  which  both  the  drawer  and 
drawee  reside  in  the  same  state,  checks,  and  prom- 
issory notes,  the  protest  of  the  notary  is  an  official 
act,  for  it  is  recognized  in  section  21  of  chapter 
199  of  the  Public  Statutes,  which  provides  fees 
for  the  protesting  of  bills  of  exchange,  checks, 
and  promissory  notes,  and  by  section  22  of  chapter 
77  of  the  Public  Statutes,  which  makes  protests  of 
these  instruments  prima  facie  evidence  of  the  fact 
of  dishonor.  Thus,  although  it  is  not  an  absolute 
necessity  to  have  an  inland  bill  of  exchange  or  a 
promissory  note  protested  in  order  to  charge  the 
indorser,  drawer,  or  maker,  still  it  is  not  only 
more  convenient  in  the  case  of  a  suit  upon  the 
bill  or  note,  but  safer,  to  have  all  negotiable  instru- 
ments protested  by  a  notary  public,  upon  their 
dishonor.  A  notarial  certificate  of  protest  of  a 
domestic  bill  of  exchange  or  of  a  promissory  note, 
as  well  as  his  certificate  of  protest  of  a  foreign  bill 
of  exchange,  shall  be  prima  facie  evidence  of  the 
dishonor,  without  further  proof.1 

1  Johnson  v.  Brown,  154  Mass.  105. 


THE    PROTEST    OF    COMMERCIAL    PAPER.  13 

METHOD   OF    PROTESTING. 

§  28.  The  usual  course  is  for  the  holder  of  the 
instrument  to  make  presentment  and  demand  for 
acceptance  or  for  payment,  and  then,  in  case  of 
refusal,  he  must  place  the  paper  in  the  hands  of  a 
notary  public,  who  goes  and  makes  presentment 
and  demand  again.  If  payment  be  refused  him, 
he  will  then  protest  the  bill  or  note  and  give  notice 
to  the  parties  sought  to  be  held. 

§  29.  The  protest  of  a  negotiable  instrument 
consists  of  the  following  steps  :  first,  the  present- 
ment of  the  instrument  for  acceptance  or  payment 
and  the  demand  for  acceptance  or  for  payment ; 
second,  the  noting  of  the  fact  of  the  dishonor; 
third,  the  notices  to  the  drawer  or  to  the  indorsers 
of  the  fact  of  dishonor;  fourth,  extending  or  draw- 
ing up  the  formal  protest;  and  a  fifth  step  mi ght 
be  added,  i.  e.  the  recording  of  the  protest. 

PRESENTMENT    AND    DEMAND. 

(a.)  Wlicn  necessary. 

§  30.  A  demand  and  notice  is  necessary  to 
charge  the  indorser  of  a  note,  although  the  maker 
is  known  to  be  insolvent.1  It  is  also  necessary, 
although    a   note  is  overdue  when  indorsed.2     Nor 

1  Granite  Hank  v.  Avers,  It;  Tick.  .392. 

2  Colt  v.  Barnard,  18  Pick.  260. 


14  NOTARIES   PUBLIC. 

is  the  infancy  of  the  maker  of  a  note  a  sufficient 
reason  for  not  making  a  demand  upon  him  for  pay- 
ment. The  holder  is  bound,  in  spite  of  the  infancy 
of  the  maker,  to  make  a  demand  upon  him  for  pay- 
ment, before  he  can  charge  the  indorser.1 

§  31.  It  is  not  necessary  to  make  an  actual  de- 
mand upon  the  maker  when  a  note  is  payable  at  a 
particular  bank,  for  it  is  his  duty,  when  the  note 
becomes  due,  to  go  to  the  bank  and  make  payment. 
All  parties  are  presumed  to  take  notice  of  the 
usual  hours  at  which  the  bank  is  open.  After  the 
expiration  of  those  hours,  the  time  for  payment 
has  expired,  the  maker  is  in  default,  and  the  note 
is  dishonored.  But  this  rule  has  no  application  to 
a  note  not  payable  at  a  bank  by  its  terms  or  by 
usage,  and  not  placed  in  any  bank  for  collection. 
Therefore  a  notice  to  the  maker  of  a  note  on  the 
last  day  of  grace  to  the  effect  that  it  is  unpaid, 
is  of  no  effect  to  charge  the  indorser  without  a 
demand  on  the  maker  for  payment.  And  this  is 
so  in  spite  of  the  fact  that  the  indorser  knows  that 
the  maker  is  insolvent  and  has  absconded.2 


(b.)  Wlw  may  make. 

§  32.  The  proper  person  to  make  presentment 
and  demand  for  acceptance  or  payment  is  the 
holder  of  the  instrument  or  his  agent,  usually  a 

i  Wyman  v  Adams,  12  Cusli.  210. 
2  Pierce  v.  Cate,  12  Cash.  190. 


THE   PROTEST    OP   COMMERCIAL   PAPER.  15 

notary  ;  and  it  is  not  necessary  that  the  instrument 
should  be  indorsed  to  the  notary. 

§  33.  A  notary  public  is  accredited  on  account 
of  his  known  public  character,  and  demand  and 
presentment  made  by  a  notary  are  undoubtedly 
good  and  available  if  he  was  employed,  and  if  the 
note  was  delivered  to  him,  by  the  lawful  holder. 
The  possession  of  the  negotiable  bill  or  note  is 
evidence  of  the  authority  under  which  he  acts,  and 
is  sufficient  without  further  proof.1 

§  34.  By  the  common  law  and  according  to  the 
uniform  practice  in  this  Commonwealth,  the  duties 
of  a  notary  must  be  performed  personally,  and  not 
by  clerk  or  deputy.  He  is  a  sworn  officer,  clothed 
with  important  public  duties,  which  in  their  nature 
imply  a  personal  confidence  and  trust.2  Therefore 
a  notary  cannot  present  a  bill  for  acceptance  or 
payment,  or  a  note  for  payment,  by  deputy. 

(c.)    At  what  'Finn  to  be  mode. 

§  35.  On  bills  of  exchange  payable  within  the 
Commonwealth  at  sight  or  at  a  future  day  certain, 
and  on  negotiable  promissory  notes,  orders,  and 
drafts  payable  within  the  Commonwealth  at  a  fu- 
ture day  certain,  if  there  is  not  an  express  stipula- 
tion to  the  contrary,  days  of  grace  shall  be  allowed 

1  Shaw,  C.  J.,  in  Kami  v.  Hubbard,  4  Met   252. 

2  Bigelow,  J.,  in  Cribbs  v.  Adams,  13  Gray,  597  ;  Ocean  Bank  v. 
Williams,  102  Mass.  141. 


16  NOTARIES   PUBLIC. 

in  like  manner  as  they  are  allowed  by  the  custom 
of  merchants  on  foreign  bills  of  exchange  payable 
at  the  expiration  of  a  certain  period  after  date  or 
sight.1  But  no  days  of  grace  shall  be  allowed  on 
a  bill  of  exchange,  note,  or  draft  payable  on  de- 
mand, nor  on  a  check  drawn  on  a  bank.2 

§  36.  The  time  the  instrument  becomes  due 
being  fixed,  the  statute  gives  three  days  from  that 
time  for  payment,  under  the  term  "  grace,"  unless 
the  contrary  be  expressly  stipulated.  Such  a  stipu- 
lation may  be  in  any  form  of  words  which  convey 
the  idea  that  it  is  to  be  payable  without  grace.3 

§  37.  The  demand  must  be  made  at  a  reasonable 
hour  on  the  last  day  of  grace,  to  be  determined  by 
the  circumstances  of  the  case.  Thus,  if  the  instru- 
ment is  payable  at  any  place  where  business  was 
transacted  during  certain  hours  of  the  day,  it  must 
be  presented  during  those  hours  ;  but  if  it  is  not 
payable  at  such  a  place,  it  may  be  presented  to  the 
maker  at  his  place  of  residence,  and  at  any  reason- 
able hour.4 

§  38.  When  a  draft  is  payable  at  sight,  it  is 
necessary  to  present  it  within  a  reasonable  time 
after  it  is  received  from  the  indorser.  The  holder 
is  bound  to  use  reasonable  diligence  in  presenting 
it,  and  the  question  whether  a  presentment  was 
made  within  a  reasonable  time  is  a  mixed  question 

i  Pub.  Sta.  ch.  77,  §  9.  2  Ibid.,  §  10. 

:i  Shaw,  C.  J.,  in  Perkins  v.  Franklin  Bank,  21  Pick.  485. 

4  Farnsworth  v.  Allen,  4  Gray,  453. 


THE    PROTEST   OF   COMMERCIAL   PAPER.  17 

of  law  and  fact,  to  be  decided  by  the  jury  under 
proper  instructions  from  the  court.1 

§  39.  When  a  promissory  note  is  made  payable 
in  a  given  number  of  days  from  the  date  or  from 
the  day  of  the  date,  the  day  of  the  date  is  to  be 
excluded  in  the  computation.2 

sj  40.  A  demand  on  the  day  before  the  maturity 
of  a  note  (as  before  the  last  day  of  grace,  if  the 
note  is  entitled  to  grace)  is  premature,  and  will  not 
charge  the  indorser.3 

£  41.  A  demand  made  after  the  maturity  of  a 
note  is  insufficient.  Payment  should  be  demanded 
on  the  day  it  becomes  due.4  But  where  the  maker 
resides  at  a  distant  or  inaccessible  place,  a  reason- 
able time  will  be  allowed  for  the  demand  to  reach 
him.5 

§  42.  The  holder  of  a  bill  payable  at  a  fixed 
period  after  date  need  not  present -it  for  acceptance 
prior  to  the  day  of  payment.  And  although  it  is 
usual  and  safe  to  do  so,  as  he  thereby  strengthens 
his  security,  or,  in  case  of  non-acceptance,  acquires 
an  immediate  right  to  call  on  the  other  parties  to 
the  bill,  yet  he  is  under  no  legal  obligation  to  do  it.6 

1  I'rescott  Bank  v.  Caverlv,  7  Gray,  221. 

-  Henry  <■.  Jones,  8  Mass.  4o2. 

8  Jones  v.  Kales,  4  Mass.  245;  Henry  v.  Junes,  8  Mass.  453; 
Farnum  p.  Fowle,  12  Mass.  89;  Mechanics'  Bank  v.  Merchants' 
Bank,  6  Met  13. 

4  Farnum  '■.  Fowle,  12  Mass.  89. 

5  Freeman  v.  Boynton,  7  Mass.  4S.1?. 

6  Fall  River  Bank  v  Willard,  5  Met.  220. 

2 


18  NOTAEIES   PUBLIC. 

But  if  he  does  so  present  it,  and  it  is  dishonored 
and  not  accepted,  he  must  give  due  notice  of  such 
presentment  and  refusal  to  accept.1 

§  43.  Bills  of  exchange,  drafts,  promissory  notes, 
and  contracts,  due  and  payable  or  to  be  performed 
on  a  Sunday,  on  a  Fast  or  Thanksgiving  day  ap- 
pointed or  recommended  by  the  Governor  of  the 
Commonwealth  or  by  the  President  of  the  United 
States,  on  Christmas  day  (when  Christmas  falls 
on  a  Sunday  the  next  day  is  a  holiday),  on  the 
twenty-second  day  of  February,  on  the  thirtieth 
day  of  May,  on  the  fourth  day  of  July,  or  on  the 
following  day  when  either  of  the  four  days  last 
mentioned  occurs  on  a  Sunday,  or  on  the  first 
Monday  of  September,  shall  be  payable  or  perform- 
able  upon  the  business  day  next  preceding  said 
days ;  and,  in  case  of  non-payment  or  non-fulfil- 
ment, may  be  noted  and  protested  upon  such  pre- 
ceding day ;  but  the  holder  or  holders  of  such 
obligations  need  not  give  notice  of  the  dishonor, 
non-payment,  or  non-fulfilment  thereof  until  the 
business  day  next  following  the  days  above  specified.2 

§  44.  Upon  a  promissory  note  payable  on  de- 
mand, a  demand  made  at  or  before  the  expiration 
of  sixty  days  from  the  date  thereof  shall  be  deemed 
to  be  made  within  a  reasonable  time  ;  and  any  act, 
neglect,  or  other  thing,  which  by  the  rules  of  law 
and  the  custom  of  merchants  is  deemed  equivalent 

1  Rice  v.  Wesson,  11  Met.  403. 

2  Pub.  Sts.  ch.  77,  §  8 ;  Sts.  1882,  ch.  49 ;  Sts.  1887,  ch.  263. 


THE   PROTEST   OP   COMMERCIAL    PAPER.  19 

to  a  presentment  and  demand  on  a  note  payable  at 
a  fixed  time,  or  which  would  dispense  with  such 
presentment  and  demand,  shall,  if  it  occurs  at  or 
before  the  expiration  of  said  sixty  days,  be  deemed 
a  dishonor  of  such  note,  and  shall  authorize  the 
holder  thereof  to  give  notice  of  the  dishonor  to 
the  indorser,  as  upon  a  presentment  to  the  prom- 
isor and  his  neglect  or  refusal  to  pay  the  same. 
A  presentment  of  such  note  to  the  promisor  and 
a  demand  of  payment  shall  not  charge  the  in- 
dorser, unless  made  on  or  before  the  last  day  of 
said  term  of  sixty  days.1 

§  45.  In  order  to  charge  the  indorser  of  a  prom- 
issory note  payable  on  demand,  a  demand  must  be 
made  within  a  reasonable  time,  and  notice  of  non- 
payment given  immediately  to  the  indorser.2 

§  46.  Orders  and  drafts  for  money,  payable 
within  the  Commonwealth,  in  which  no  time  of 
payment  is  expressed,  time  notes  overdue  when 
indorsed,  and  promissory  notes  for  a  sum  certain 
with  interest  payable  annually  but  which  state  no 
time  of  payment,  are  payable  on  demand,  and  a 
demand  must  therefore  be  made  within  a  reason- 
able time  upon  the  drawees  or  makers  in  order  to 
charge  the  drawers  or  indorsers.3 

1   l'ul.   Sts.  i'h.  77,  §  12. 

3  Field  v.  Xiokerson,  13  Mass.  131  ;  Seaver  v.  Lincoln,  21  Pick 
267. 

3  Pub.  Sts.  ch.  77,  §  11  ;  Colt  v.  Barnard,  18  Pick.  260,  Con- 
verse v.  Johnson,  146  Mass  20. 


20  NOTARIES   PUBLIC. 

§  47.  The  provisions  in  the  statutes,  that,  upon 
a  promissory  note  payable  on  demand,  a  demand 
made  at  or  before  the  expiration  of  sixty  days  from 
its  date  shall  be  deemed  to  be  within  a  reasonable 
time  and  shall  authorize  the  holder  to  give  notice 
of  the  dishonor  of  the  note  to  the  indorser,  does 
not  apply  to  such  note  when  it  is  indorsed  after 
sixty  days  from  its  date.1 

(d)    How  and  where  to  he  made. 

§  48.  The  proper  manner  of  making  a  present- 
ment of  a  bill  of  exchange  for  acceptance  is  for  the 
notary  to  exhibit  the  bill  to  the  drawee  and  un- 
equivocally demand  acceptance.2 

§  49.  As  a  general  rule,  the  person  making  the 
demand  ought  to  have  the  note  or  bill  with  him, 
so  as  to  surrender  it  if  paid.  The  exceptions 
to  this  rule  are,  where  the  bill  or  note  is  lost,  in 
which  case  a  tender  of  sufficient  security  would 
make  the  demand  valid,  without  producing  the 
security  ;  and  where,  from  the  usual  course  of  busi- 
ness of  which  both  parties  are  cognizant,  the 
security  may  be  lodged  in  some  bank,  whose  offi- 
cers shall  demand  payment  and  give  notice  to  the 
indorser,  according  to  the  custom  of  such  banks  ; 
the  security  not  being  presented  at  the  time  of  the 

1  Rice  v.  Wesson,  1 1  Mot.  400. 

2  Pall  River  Bank  v.  Willard,  5  Met   216. 


THE   PROTEST   OF   COMMERCIAL   PAPER.  21 

demand,  bul  the  parties  being  presumed  to  know 
where  it  may   be  found.1 

§  50.  It  the  maker  lias  left  the  state,  the  holder 
must  demand  payment  at  his  actual  or  last  place  of 
abode  or  of  business,  within  the  state.2 

§  51.  When  a  resident  in  the  state,  after  giving 
a  note,  removes  from  the  state,  and  takes  up  his 
residence  out  of  the  state,  it  is  not  necessary  to 
demand  payment  of  the  promisor  at  his  new  resi- 
dence,.in  order  to  charge  an  indorser  to  the  note. 
But  where  the  maker  of  a  note,  when  it  is  made 
and  indorsed,  has  a  known  residence  out  of  the 
state,  which  residence  remains  unchanged  at  the 
maturity  of  the  note,  demand  must  be  made  on 
him,  or  due  diligence  used  for  that  purpose,  and 
notice  of  non-payment  given  to  the  indorser,  be- 
fore the  indorser  can  be  charged.8 

§  52.  If  the  maker  of  a  promissory  note  leaves 
the  Commonwealth,  abandoning  simultaneously 
both  his  residence  and  his  place  of  business  here, 
although  his  family  remain  a  few  months  at  the 
former,  it  is  sufficient  to  charge  one  who  indorsed 
the  note  since  the  maker  absconded,  to  make  a 
demand  at  the  maker's  last  place  of  business,  with- 
out inquiry  at  his  last  residence  or  of  the  indorser 
for  the  maker's  present  residence.4 

1  Freeman  v.  Boynton,  7  Mass.  483. 

-  Wheeler  v.  Field,  6  Met.  290. 

;  Bank  of  OrleanB  v.  Whittemore,  12  Gray,  473. 

*  Grafton  Bank  v.  Cox,  18  Gray,  .r>u3. 


22  NOTARIES   PUBLIC. 

§  53.  When  there  are  several  makers  of  a  prom- 
issory note  who  are  not  partners,  the  note  must  be 
presented  for  payment  to  all  of  the  makers,  and 
notice  must  be  given  to  the  indorser  of  their  failure 
to  pay,  in  order  to  charge  the  latter.1 

ACCEPTANCE. 

§  54.  A  person  upon  whom  a  bill  of  exchange 
or  draft,  wnich  requires  acceptance,  is  drawn,  shall 
have  until  two  o'clock  in  the  afternoon  of  the 
business  day  next  succeeding  the  first  presentation 
thereof  in  which  to  decide  whether  or  not  he  will 
accept  the  same  ;  but  every  bill  of  exchange  or 
draft  which  is  for  cause  held  over  one  day  shall 
when  accepted  date  from  the  day  of  presentation.2 

§  55.  The  customary  method  of  accepting  a  bill 
of  exchange  is  for  the  drawee  to  write  the  word 
"  accepted  "  across  the  face  of  the  bill,  and  to  sign 
his  name  underneath  this  ;  but  the  acceptance  of  a 
bill  of  exchange  need  not  be  by  writing  upon  the 
bill  itself,  but  a  separate  written,  or  even  an  oral, 
promise  by  the  drawee  to  the  holder  is  binding.3 

§  56.  The  drawee  of  the  bill  of  exchange  himself 
or  his  agent  duly  authorized  is  the  only  one  who 
can  give  an  acceptance  which  will  be  binding.     The 

»  Union  Bank  v.  Willis,  8  Met.  504 ;  Arnold  v.  Dresser,  8  Allen, 
435. 

2  Pub.  Sts.  ch.  77,  §  17. 

8  Ward  v.  Allen,  2  Met.  53  ;  Exchange  Bank  v.  Rice,  98  Mass 
288  j  Pierce  v.  Kittredge,  115  Mass.  374. 


THE   PROTEST   OF   COMMERCIAL   PAPER.  23 

acceptance  by  one  partner  of  a  bill  drawn  upon  his 
linn  is  sufficient,  for  in  that  sense  the  partner  is 
the  agent  of  the  firm.1 

NOTING. 

§  57.  In  case  acceptance  or  payment  is  refused, 
the  notary  must  "  note  "  the  fact  on  the  very  day 
of  dishonor.2  The  noting,  which  may  be  either 
upon  the  protested  paper  itself  or  in  the  records 
of  the  notary,  is  a  memorandum  of  the  fact  of 
presentment,  of  refusal  of  acceptance  or  payment, 
the  name  of  the  one  to  whom  it  was  presented,  and 
the  place,  the  time  and  date,  and  signed  by  the 
initials  of  the  notary.3 

NOTICE. 

§  58.  When  acceptance  of  a  bill  or  payment  of 
either  a  bill  or  note  has  been  refused,  the  liability 
of  the  drawee  or  indorsee  is  generally  not  com- 
plete, unless  notice  of  dishonor  is  sent  to  him. 

(a)    Who  may  give. 

§  59.  The  notice  of  demand  and  non-payment 
must  come  from  the  holder  of  the  instrument,  or 
from  his  agent,  usually  a  notary.  Thus,  where  a 
notary  sent  a  notice  of  dishonor  to  an  indorser,  and 
signed  it  by  mistake  with  the  name  of  the  maker 

1  Mason  v.  Ramsey,  1  Campb.  384. 

2  Thompson  on  Bills,  315.  u  Ibid.,  312. 


24  NOTARIES   PUBLIC. 

as  "  notary  public,"  instead  of  signing  it  with  his 
own  name,  it  was  held  to  be  an  insufficient  notice.1 

(b)    Wlien  necessary. 

§  60.  An  indorser  of  a  bill  of  exchange  is  en- 
titled to  notice  of  a  protest  for  non-acceptance, 
although  the  drawer  is  insolvent  and  has  ab- 
sconded.2 

§  61.  If  the  drawer  of  a  bill  of  exchange  had  no 
effects  in  the  hands  of  the  drawee,  from  the  time 
the  bill  was  drawn  to  the  time  it  became  due,  he  is 
not  entitled  to  proof  of  demand  and  notice  of  non- 
payment.3 Nor  is  he  entitled  to  notice  as  indorser 
where  the  bill  was  payable  to  his  own  order,  and 
indorsed  by  him.4 

§  62.  "Where  the  drawer  of  a  bill  of  exchange 
had  effects  in  the  hands  of  the  drawee  at  the  time 
when  the  bill  was  drawn,  but  after  the  bill  was 
drawn  and  before  it  was  presented  for  acceptance 
the  effects  in  the  hands  of  the  drawee  were  at- 
tached, the  drawer  is  still  entitled  to  notice  of  the 
non-acceptance,  for  when  the  bill  was  made  the 
drawer  had  a  reasonable  expectation  that  it  would 
be  paid.5 

§  03.  The  drawer  of  a  bill  on  a  person  who  has 
no  funds,  but  who  has  agreed  to  accept  and  into 

1  Cabot  Bank  r.  Warner,  10  Allen,  522. 

2  May  v.  Coffin,  4  Mass.  341. 

3  Kinsley  v.  Robinson,  21  Pick.  327. 

4  1  Met.  109,  note.  5  Stanton  v.  Blossom,  14  Mass.  116. 


THE   PROTEST    OF   COMMERCIAL   PAPER.  20 

whose  hands  funds  of  the  drawer  come  before 
maturity  of  the  bill,  is  not  liable  without  due 
demand   and  notice.1 

§  G4.  An  indorser  of  a  bill  of  exchange  is  en- 
titled to  seasonable  notice  of  a  protest  for  non- 
acceptance,  although  he  indorsed  only  for  the 
accommodation  of  the  drawer,  and  although  the 
drawer  had  no  effects  in  the  hands  of  the  drawee.2 

(c)    Form  of  Notice. 

§  65.  The  notice  should  be  such  that  it  will  in- 
form the  indorser  that  the  note  has  become  due 
and  been  dishonored,  and  that  the  holder  relies  on 
the  indorser  for  payment.  This  information  may 
be  express,  or  may  be  inferred  by  necessary  im- 
plication from  the  language  used.  It  is  not  neces- 
sary to  inform  the  indorser  of  the  time,  place  or 
mode  of  presentment  and  demand,  nor  the  means 
by  which  it  was  dishonored,  nor  matter  of  excuse 
or  waiver.  Whatever  legally  fixes  the  promisor 
with  dishonor  is  sufficient,  on  due  notice  given,  to 
charge  the  indorser.3 

§  66.  The  notice  to  the  indorser  must  state  that 
the  note  has  been  duly  presented  to  and  payment 
demanded  of  the  maker,  and  this  is  what  it  means 
when  the  notice  states  that  the  instrument  has 
been  "  protested  for  non-payment."     And  no  mis- 

1  Grosvenor  v.  Stone,  8  Pick.  79. 
-  Warder  v.  Tucker,  7  M;iss.  -W9. 
3  Gilbert  --.  Dennis,  a  Met.  495. 


26  NOTARIES    PUBLIC. 

take  or  misdescription  will  render  the  notice  insuf- 
ficient if  it  is  not  of  a  character  to  mislead  the 
indorser.1 

§  67.  A  notice  by  a  notary  is  sufficient  if  it  does 
not  state  who  holds  the  note,  nor  at  whose  request 
the  notice  is  given.2 

§  68.  If  the  maker  of  a  note  has  left  the  Com- 
monwealth before  the  maturity  of  the  note,  the 
notice  to  the  indorser  of  non-payment  need  not 
state  this  fact.  It  is  sufficient  if  the  demand  for 
payment  has  been  left  at  the  last  and  usual  place 
of  abode  of  the  maker,  or  at  his  place  of  business.3 

§  69.  Where  a  note  is  payable  at  a  bank,  a 
notice  after  bank  hours,  on  the  last  day  of  grace, 
that  the  note  "fell  due  this  day,  and  remains 
unpaid,"  sufficiently  indicates  that  the  note  is  dis- 
honored ; 4  and  a  notice  seasonably  given  to  an  in- 
dorser may  be  sufficient,  although  it  misstate  the 
day  of  maturity  of  the  note,  and  designate  the  maker 
by  a  name  not  his  own,  if  the  indorser  is  not  misled 
by  such  errors.5 

§  70.  A  notice  to  the  indorser  of  a  note,  which 
merely  states  that  the  note  remains  unpaid,  and 
that  the  holders  look  to  him  for  payment,  is  not 
sufficient   to   charge    the    indorser,   although   the 

1  Housatonic  Bank  v.  Lanin,  5  Cash.  546. 

2  Shed  v.  Brett,  1  Pick.  401. 

8  Sanger  v.  Stimpson,  8  Mass.  260. 
*  Clark  v.  Eldridge,  13  Met.  96. 
5  Smith  v.  Whiting,  12  Mass.  6 


THE   PROTEST   OF   COMMERCIAL   PAPER.  27 

notice  is  given  by  a  notary  public.  The  notice 
must  be  such  as  to  assert  or  imply  that  the  note 
has  been  presented,  and  payment  refused,  or  other- 
wise dishonored.1 

Form. 

B ,  ,  189  . 

M 

You  are  hereby   notified    that   a    [bill  of  exchange, 

promissory  note  or  check]  for dollars  To<j, 

dated  ,  ,  [drawn  or  indorsed  by 

you],  has  been  [protested  or  noted]  by  me  for  non- 
payment or  acceptance]  after  due  [presentment  and 
demand]  made  [upon]  the  [maker  or  drawee]  this  day, 
and  that  you  are  held  answerable  for  the  amount,  with 
all  legal  costs,  interests  and  damages  in  consequence 
of  the  non- [payment  or  acceptance]  thereof. 

W.  L.,  Notary  Public. 

(d)    IWien  to  be  made  and  given. 

§  71.  To  charge  an  indorser  of  a  note  payable  on 
demand,  the  indorsee  must  give  him  notice  of  non- 
payment upon  the  first  demand  on  the  maker,  al- 
though such  demand  was  made  at  an  earlier  day 
than  was  necessary,  in  order  to  render  the  indorser 
liable  on  his  indorsement,  and  although  the  indorsee 
gives  the  indorser  notice  of  non-payment  upon  a 
second   demand  on  the  maker,  which  would  have 

1  Pinkham  v.  Macy,  9  Met.  174. 


28  NOTARIES   PUBLIC. 

been  in  season  to  charge  the  indorser,  if  no  previ- 
ous demand  had  been  made.1  And  this  applies 
to  a  time  note  indorsed  after  maturity,  as  it  thus 
becomes  a  note  on  demand.2 

§  72.  The  settled  general  rule  of  the  mercantile 
law  is  that  notice  to  the  indorser  on  the  day  of  the 
dishonor  and  after  the  dishonor,  or  in  the  course  of 
the  next  succeeding  day,  is  seasonable.3  But  notice 
to  the  indorser  before  any  demand  on  the  maker 
is  insufficient.4 

§  73.  If  the  promisor  has  absconded  before  the 
note  is  due,  without  having  made  provision  for  its 
payment,  so  that  no  presentment  and  demand  can 
be  made,  that  is  a  dishonor,  of  which  the  holder 
may,  immediately  after  the  note  has  become  due, 
notify  the  indorser  ;  or  if  the  promisor  has  agreed 
that  notice  left  at  a  particular  place  shall  be 
deemed  a  good  substitute,  and,  notwithstanding 
notice  is  so  left,  he  does  not  make  payment,  this 
is  likewise  a  dishonor,  of  which  the  indorser  may 
be  notified  at  once.5 

§  74.  The  holder  of  a  bill  of  exchange  protested 
for  non-acceptance  or  non-payment  is  not  obliged 
to  transmit  such  protest,  at  the  time  it  is  made,  to 
the  parties  to  whom  he  intends  to  resort  for  pay- 

1  Rice  v.  Wesson,  11  Met.  400. 

2  Colt  v.  Barnard,  18  Pick.  260. 

3  Shaw,  C.  J.  iu  Grand  Bank  v.  ISlanchard,  23  Pick.  307. 

4  Park  v.  Page,  1  Dane  Abr.  425. 

5  Gilbert  v.  Dennis,  3  Met.  495. 


THE   PROTEST   OF    COMMERCIAL    PAPER.  29 

ment ;  but  he  must  give  them  seasonable  notices 
of  the  non-acceptance  and  non-payment.1 

(e)  Where  and  how  to  be  given. 

§  75.  Notice  shall  be  bo  given,  and  at  such  place, 
that  it  will  be  most  likely  to  reach  the  indorser 
promptly.  Thus,  where  the  indorser  was  a  member 
of  Congress  but  had  his  domicile  in  Boston,  it  was 
held  that  a  notice  sent  to  him  at  Washington,  and 
received  there  by  him,  was  sufficient  to  charge  him 
as  indorser.2 

vj  76.  When  a  party  to  a  promissory  note,  bill  of 
exchange  or  other  negotiable  instrument,  is  entitled 
to  notice  of  non-acceptance  or  non-payment  of  the 
same,  and  such  instrument  is  payable  or  to  be 
accepted,  or  is  legally  presented  for  payment  or 
acceptance,  in  a  city  or  town  in  which  such  party 
has  his  residence  or  place  of  business,  or  when  for 
any  other  reason  a  notice  given  to  such  party  in 
such  city  or  town  would  be  sufficient,  such  notice 
may  be  given  by  depositing  it  in  a  post-office  in 
Baid  city  or  town,  with  the  postage  thereon  pre- 
paid, and  sufficiently  directed  to  the  residence  or 
place  of  business  of  the  party  for  the  usual  course 
of  mails  within  the  limits  of  said  city  or  town  and 
for  the  usual  course  of  delivery  by  postal  carriers 
therein.8 

1  Lenox  /•.  Leverett,  10  Mass.  1. 

-'  Choteau  <•.  Webster,  6  Met.  1  ;  Young  v.  Durgin,  15  Gray,  264 

3  Pub.  Sts.  eh.  77,  §  16. 


30  NOTARIES   PUBLIC. 

§  77.  Prior  to  the  passage  of  the  statute  men- 
tioned in  the  preceding  section  the  holder  of  a 
bill  or  note  could  not  give  notice  of  its  dishonor 
through  the  mail  to  an  indorser  or  drawer  who 
lived  in  the  same  city  or  town,  but  must  give  the 
notice  to  him  personally,  or  at  his  place  of  busi- 
ness or  residence.  The  chief  object  of  the  statute 
was  to  extend  the  privilege  of  giving  notice  by 
mail  to  cases  where  the  parties  live  in  the  same 
place.1  But  if  it  is  desirable,  the  notice  may  be 
served  by  leaving  it  at  the  residence  or  place  of 
business  of  the  indorser  or  drawer.2 

§  78.  Under  the  provisions  stated  in  §  76,  ante, 
a  notice  to  an  indorser  of  a  promissory  note  of  its 
non-payment,  duly  deposited,  postage  prepaid,  in 
the  post-office  in  the  town  in  which  he  lives,  the 
direction  on  the  envelope  in  which  it  is  enclosed 
containing  only  his  name  and  that  of  the  town,  is 
sufficient,  although  he  lives  on  a  street  which  has 
a  name,  if  the  houses  on  the  street  are  not  num- 
bered, and  there  is  no  postal  delivery  by  carriers ; 
and  the  facts  that  he  did  not  receive  the  notice, 
and  that  another  person  of  the  same  name  lived  in 
the  town  who  did  not  receive  it,  are  immaterial.3 

§  79.  Where  the  notice  is  served  at  an  indorser' s 
office,  it  must  be  served  during  business  hours;  but 
where  it  is  served  at  his  residence,  it  may  be  served 

1  Wachusett  National  Bank  v.  Fairbrother,  148  Mass.  184. 

2  Story,  Prom.  Notes,  §  340. 

3  Morse  v.  Chamberlin,  144  Mass.  406. 


THE    PROTEST   OF   COMMERCIAL    PAPER.  31 

at  any  reasonable  hour  before  the  house  is  closed 
for  the  night.1 

§  80.  Where  the  indorser  of  a  promissory  note 
resides  in  a  town  where  there  are  two  post-offices, 
of  which  fact  the  holder  of  the  note  is  ignorant,  a 
notice  of  the  dishonor  of  the  note,  addressed  to  the 
indorser  at  the  town  generally,  is  sufficient,  unless 
lie  proves  that  he  is  accustomed  to  receive  his 
letters  at  one  of  the  offices  only,  and  that  the 
holder  of  the  note  might  have  ascertained  that 
fact  by  reasonable  inquiry.2 

§  81.  A  notice  sent  by  mail  to  an  indorser  and 
addressed  with  the  name  of  the  town  or  city  alone, 
no  street  and  number  being  used,  is  sufficient  to 
charge  the  indorser,  if  he  in  fact  lives  in  the  town 
or  city  named,  and  unless  it  appears  that  there 
was  another  person  of  the  same  name  in  the  same 
place.8 

§  82.  A  notice  of  the  non-payment  of  a  note, 
addressed  and  sent  in  due  season  by  mail  to  an 
indorser  at  the  post-office  where  he  usually  receives 
his  letters,  and  received  by  him  there  on  the  day 
after  the  note  fell  due,  is  sufficient  to  fix  his  liabil- 
ity thereon,  although  such  post-office  is  in  another 
part  of  the  same  town.4 

1  2  Edwards,  Notes  and  Bills.  §  829 ;  Bonner  v.  New  Orleans,  2 
Wu,„ls  (U.  S.),  135. 

2  Burlingame  v.  Foster,  128  Mass   125. 
8  True  v.  Collins,  3  Allen,  438. 

4  Shaylor  v.  Mix,  4  Allen,  351. 


32  NOTARIES   PUBLIC. 

§  83.  An  indorser  who  lives  in  a  town  where 
there  is  a  post-office,  is  not  properly  notified  of  the 
dishonor  of  an  instrument  by  a  drop-letter  left  for 
him  in  the  post-office  of  another  town  where  the 
holder  resides,  and  addressed  to  the  indorser  as  if 
he  also  resided  there,  even  though  it  appears  that 
the  indorser  is  in  the  habit  of  resorting  to  the 
post-office  in  each  of  the  two  places.1 

§  84.  Sending  notice  to  the  indorser  according 
to  an  established  usage  is  sufficient,  whether  the 
indorser  receives  it  or  not.2  Thus,  a  notice  of 
the  non-payment  of  a  promissory  note,  addressed 
to  the  indorser  and  deposited  in  a  post-office  box 
in  a  public  street,  is  sufficient,  that  being  the  cus- 
tomary way  of  sending  letters  ; 3  and  for  the  same 
reason  notices  of  non-payment  of  a  promissory  note 
addressed  to  all  the  indorsers  respectively,  and  en- 
closed in  a  letter  to  the  last  indorser,  are  sufficient 
to  charge  the  prior  indorsers.4 

§  85.  Where  a  notary  seasonably  left  a  notice  of 
non-payment  at  a  shop  near  the  indorser's  place  of 
business,  because  the  indorser  was  out  of  town,  it 
was  said  to  be  extremely  doubtful  whether  this 
was  sufficient,  although  the  indorser  took  away 
the  notice  the  next  day  or  the  day  after.  "  Al- 
though a  man  is  out  of  town,  yet  if  he  has  a  domi- 

1  Shelburne  Falls  Bank  v.  Townsley,  107  Mass.  444. 

2  Lincoln  &  Kennebec  Bank  v.  Hammatt,  9  Mass.  159 

3  Johnson  v.  Brown,  154  Mass.  105. 

4  Wamesit  Bank  v.  Buttrick,  11  Gray,  387. 


THE   PROTEST   OF   COMMERCIAL   PAPER.  33 

cilc  or  place  of  business,  it  is  to  be  presumed  that 
be  will  leave  some  person  charged  with  the  care 
of  his  business,  or  at  least  some  one  between  whom 
and  himself  there  is  a  privity  or  confidence.  It  is 
upon  this  principle  that  all  notices  at  one's  dom- 
icile, and  all  notices  respecting  transactions  of  a 
commercial  nature  at  one's  place  of  business,  are 
deemed  in  law  to  be  good  constructive  notice,  and 
to  have  the  legal  effect  of  actual  notice."  J 

§  86.  Where  a  promissory  note  specifies  no 
place  of  payment,  a  presentment  of  it  at  the 
former  place  of  business  of  the  maker,  without 
any  inquiry  as  to  his  place  of  residence,  is  not  a 
good  presentment  to  charge  an  indorser.  The 
present  menl  at  the  former  place  of  business,  with- 
out any  inquiry  as  to  the  place  of  residence,  does 
not  show  such  diligent  search  for  the  maker  and 
failure  to  find  him  as  would  excuse  a  want  of  pre- 
sentment of  the  note  and  demand  of  payment.2 

§  87.  Thus  it  may  be  seen  that  "  residence  "  in 
the  law  of  negotiable  instruments  is  not  used  in  a 
strict  sense  as  necessarily  implying  a  permanent, 
exclusive  or  actual  abode  in  the  place,  but  it  may 
be  satisfied  by  a  temporary,  partial  or  even  con- 
structive residence.3 

1  Shaw,  C.  J.,  in  Granite  Bank  v.  Avers,  16  Pick.  392. 

2  Talbot  v.  National  liank  of  the  Commonwealth,  129  Mass.  67. 
8  Wachusett  National  Bank  '■.  Fairhrother,  148  Mass.  185. 


34  NOTARIES   PUBLIC. 

(f)    To  whom  to  be  given. 

§  88.  The  makers  and  indorsers  of  a  bill  of  ex- 
change and  the  indorsers  of  a  promissory  note 
must  have  notice  of  protest  in  order  to  make  them 
liable,  and  every  person  becoming  a  party  to  a 
promissory  note  payable  on  time,  by  a  signature 
in  blank  on  the  back  of  the  note,  shall  be  en- 
titled to  notice  of  non-payment  the  same  as  an 
indorser.1 

§  89.  The  several  indorsers  of  promissory  notes 
payable  on  demand  shall,  upon  due  and  seasonable 
notice  of  the  dishonor  of  such  notes,  be  liable  in 
the  same  manner  and  to  the  same  effect  as  upon 
the  dishonor  of  promissory  notes  payable  at  a  fixed 
time  ; 2  and  the  indorser  in  blank  of  a  promissory 
note  made  payable  to  his  order  for  value  is  not 
liable  thereon  without  proof  of  notice  of  its  non- 
payment by  the  maker.3 

§  90.  If  a  bill  of  exchange  is  drawn  by  a  part- 
nership, notice  to  the  partnership  of  the  dishonor 
of  the  bill  is  notice  to  all  the  members.  And  if  the 
partnership  has  been  dissolved,  and  all  of  the  part- 
ners have  gone  away,  a  notice  of  the  dishonor  given 
at  the  place  where  they  formerly  did  business,  and 
received  by  an  agent  appointed  to  wind  up  the  part- 
nership, is  sufficient,  if  the  holder  did  not  know  of 
the  dissolution.4 

1  Pub.  Sts.  ch.  77,  §  15.  2  Ibid.,  §  13. 

3  Webber  v.  Matthews,  101  Mass.  481. 

4  Bliss  v.  Nichols,  12  Alien,  443. 


THE    PROTEST   OF    COMMERCIAL    PAPER.  35 

§  91.  Although  it  is  better  for  the  notary  to  send 
simultaneous  notices  of  the  dishonor  of  an  instru- 
ment to  all  the  parties  to  it  whom  it  is  desired  to 
charge,  still  this  is  not  absolutely  necessary,  and 
where  there  are  several  successive  indorsers  of  a 
bill  of  exchange  or  promissory  note  it  is  compe- 
tent for  the  holder  to  send  notice  to  his  immediate 
indorser,  and  if  each  transmits  notice  after  he 
himself  has  received  it,  the  indorsers  are  severally 
liable,  although  the  notice  does  not  reach  the  ear- 
lier indorsers  quite  so  soon  as  if  it  were  transmitted 
to  each  indorser  at  once  by  the  party  who  is  holder 
at  the  time  of  dishonor,  or  by  the  notary  emp'oyed 
by  such  party.1 

DILIGENCE. 

§  92.  A  notary  is  required  to  exercise  due  dili- 
gence in  the  discharge  of  his  duties  as  regards 
commercial  paper,  but  the  law  does  not  require  of 
the  holder  of  a  negotiable  instrument,  or  of  his 
agent  the  notary  public,  the  highest  and  strictest 
degree  of  diligence  in  giving  notice  of  its  dishonor, 
but  only  such  a  degree  of  reasonable  diligence  as 
will  ordinarily  bring  notice  home  to  the  party  ■ 
and  less  diligence  is  required  in  ascertaining  the 
residence  for  the  purpose  of  giving  notice  than 
for  the  purpose  of  making  a  demand  of  payment.2 

1  Shaw.  ('.  .1  .  in  Eagle  Hank  v.  Hathaway.  .">  Met.  215. 
-  Wachusett  National  Bank  v.  Faiibrother,  148  Mass.  185. 


36  NOTARIES    PUBLIC. 

Thus   notice   of  the   dishonor  of  a  bill  or  note  is 
sufficient  to  charge  an  indorser  or  drawer  if  it  is 
delivered  to  him  personally,  or  is  left  at  his  place  of 
residence  or  of  business,  the  postage  being  prepaid.1 
Going  to  the  place  of  business  of  the  maker  of  a 
note,  in  business  hours,  with  the  note,  to  demand 
payment   of   it   and    finding   it  shut,  without  any 
person  to  answer  inquiries,  is  using  due  diligence, 
and  excuses  a  want  of  demand,  although  the  note 
is  not  expressly  payable  at  such  place  of  business.2 
Where  the  holder  of  a  bill  drawn  by  a  person  who 
had  been  absent  from  the  state  for  several  years 
left    a  notice  at  his  last  dwelling-house,  none  of  his 
family  residing  there,  which  came  to  the  hands  of 
the  drawer's  wife,  it  was  thought  that  due  diligence 
had  been  used.3     But  where  a  note  was  dated  at 
Boston,  where  the  maker  and  all  the  indorsers  re- 
sided, it  was  held  that  the  fact  that  the  notary  went 
to  various  places  in  Boston,  making  diligent  inquiry 
of  different  people  for  the  promisor,  but  could  not 
find  him,  nor  any  one  knowing  him,  nor  any  one 
with  the  funds  for  the  payment  of  the  note,  and 
thereupon  sent  notices  to  the  several  indorsers,  did 
not  show  reasonable  diligence  to   find  the  maker 
which  would  excuse  a  want  of  a  presentment  and 
demand  ;4  and  where  the  holder  of  a  note  of  a  firm 

1  Bank   of   America  v.   Shaw,    142  Mass.  290;  Importers  and 
Traders'  Hank  v.  Shaw,  144  Mass.  421. 
-  Shed  v.  Brett,  1  Pick.  413. 
s  Blakely  v.  Grant,  6  Mass.  386. 
4  Porter  v.  Judson,  1  Gray,  175. 


THE    PROTEST    OF    COMMERCIAL    PAPER.  37 

presented  it  at  the  last  place  of  business  of  the 
makers,  but  which  was  then  occupied  by  strangers, 
and  was  told  that  the  makers  had  gone  out  of  the 
city  without  leaving  any  funds,  whereupon  he  made 
no  further  inquiry  for  them,  but  in  fact  one  of  them 
lived  in  the  city  and  his  name  and  place  of  resi- 
dence were  in  the  directory,  it  was  held  that 
there  had  not  been  sufficient  diligence  to  excuse 
a  demand.1 

§  93.  The  principle  of  all  the  decisions  on  the 
subject  is,  that  reasonable  diligence  must  be  used 
by  the  holder  in  getting  notice  of  the  dishonor  to 
the  indorser  or  drawer.2 

RECORDS. 

§  94.  Notaries  public  must  keep  a  record  in 
which  their  transactions  with  regard  to  the  protests 
of  commercial  paper  shall  be  set  down.  These 
records  must  be  carefully  kept,  as  they  must  be 
delivered  up  by  the  notary  on  the  expiration  of 
his  appointment,  under  a  heavy  penalty.3  A  book 
prepared  for  keeping  these  records  may  be  obtained 
from  law  stationers. 

EXTENDING    THE   PROTEST. 

§95.  While  the  notary  must  "note"  the  fact 
of  the  dishonor  of  an  instrument   on  the  very  day 

1  Granite  Hank  i>.  Avers,  if.  Pick.  :592. 

-  Bobba  '•.  Straine,  149  Mass.  2\2. 

3  Puh.  Sts.  ch.  IS,  £§  2-1  (£§  17-19,  ante). 


38  NOTARIES   PUBLIC. 

upon  which  it  occurs,  he  may  make  out  the  full 
and  complete  protest  at  any  reasonable  time  after- 
ward, before  suit  is  brought  on  the  instrument. 
The  protests  must  be  duly  certified  by  the  notary 
public  under  his  hand  and  official  seal,  and  shall 
be  prima  facie  evidence  of  the  facts  stated  in  the 
protest  and  of  the  notice  given  to  the  drawer  or 
indorser.1 

Form  of  Protest  of  Bill  or  Check. 
COMMONWEALTH   OF   MASSACHUSETTS. 


S.  Y  ss. 

On  the  clay  of  ,  in  the  year  of  our 

Lord  one  thousand  eight  hundred  and  ninety  ,  I, 

A.  B.,  Notary  Public,  duly  admitted  and  sworn,  and 
practising  in  said  county  and  [in  the  city  or  town  of  B.], 
at  the  request  of  [the  holder]  went  with  the  original 
[bill  or  check]  which  is  hereto  annexed,  the  time  therein 
limited  and  grace  having  fully  elapsed,  and  demanded 
payment  thereof  [here  state  manner  of  demanding  pay- 
ment]. The  [bill  or  check]  remaining  unpaid,  I  duly 
and  officially  notified  the  [drawer  and  indorsers,  —  here 
state  manner  of  sending  notice,  e.  g.  by  mailing  notices 
properly  addressed  to  them]  (postage  prepaid)  of  said 
[non-payment]  requiring  payment. 

Wherefore  I,  the  said  Notary,  by  request  as  aforesaid, 
have  protested,  and  by  these  presents  do  solemnly  pro- 

i  Tub.  Sts.  ch.  77,  §  22. 


THE    PROTEST    OF    COMMERCIAL    PAPER.  39 

test,  against  the  drawer  of  said  [bill  of  exchange  or 
check]  and  all  others  concerned  therein,  for 
exchange,  re-exchange,  and  all  costs,  charges, 

[seal.]  damages  and  interest,  suffered  and  sustained, 
or  to  be  suffered  and  sustained,  by  reason  or 
in  consequence  of  the  non-pa}*mcnt  thereof. 

In  testimony  whereof  I  have  hereunto  set  my  hand 
and  affixed  my  notarial  seal,  the  da}*  and  year  first 
above  written. 

Fees  : 

Noting  non-acceptance  . 

Postage 

Protesting  for  non-payment 
Postage 


A.  B.,  Notary  Public. 

§  96.  Where  there  have  been  protests  for  non- 
acceptance  and  non-payment  both,  it  is  only  neces- 
sory  to  draw  up  one  formal  protest.  This  may  be 
done  by  a  form  similar  to  the  above,  the  "  Noting 
Non-acceptance "  sufficiently  indicating  the  pro- 
test for  non-acceptance.  Where  protests  for  non- 
acceptance  or  non-payment  alone  are  required,  the 
above  form  may  be  used  by  making  the  requisite 
verbal  changes. 


40  NOTARIES    PUBLIC. 

Form  of  Protest  of  a  Promissory  Note. 
[Here  affix  the  original  note  or  a  copy.] 
COMMONWEALTH  OF  MASSACHUSETTS. 

>  ss. 

On  this  day  of  ,  in  the  year  of  our 

Lord  one  thousand  eight  hundred  and  ninety  ,  I, 

A.  B.,  Notary  Public  by  legal  authority,  commissioned 
and  qualified  for  said  county,  and  practising  in  [town 
or  city] ,  at  the  request  of  [the  holder],  of  ,  went 

with  the  original  note  [if  a  copy  is  annexed  so  state], 
which  is  hereto  annexed,  the  time  limited  therein  and 
grace  having  elapsed,  to  [the  maker,  or  place  of  pay- 
ment] and  demanded  payment  [here  state  manner  of 
demanding  payment]. 

The  note  remaining  unpaid,  I  have  officially  notified 
the  [e.  g.  first,  second  and  third]  indorsers  of  the  said 
default  by  notice  addressed  to  [them],  and  [here  state 
method  of  notification]. 

Wherefore  I,  the  said  Notary,  at  the  request  afore- 
said, have  protested,  and  by  these  presents  do  solemnly 
protest  against  the  maker  of  said  [note] ,  the  indorser, 
and  all  others  whom  it  doth  or  may  concern,  for  ex- 
change, re-exchange,  and  all  costs,  charges,  damages 
and  interest,  suffered,  sustained  and  incurred,  or  to  be 
suffered,  sustained  and  incurred  by  reason  or  in  con- 
sequence of  the  non-payment  of  said  [note]. 

[SEAI,.] 

Thus  done  and  protested  in  [town  or  city]  aforesaid, 
and  my  notarial  seal  affixed,  the  da}'  and  3-ear  last 
written. 


THE   PROTEST   OF    COMMERCIAL   PAPER. 


41 


Charges : 

Noting, 
Protest, 
Record, 
Notice, 
Postage, 


A.  B.,  Notary  Public. 


FEES    FOR    PROTESTING. 

§  97.  The  fees  of  notaries  public  shall  be  as 
follows :  — 

For  the  protest  of  a  bill  of  exchange,  order,  draft 
or  check,  for  non-acceptance  or  non-payment,  if  the 
amount  thereof  is  five  hundred  dollars  or  more, 
one  dollar  ;  if  it  is  less  than  five  hundred  dollars, 
fifty  cents;  for  recording  the  same,  fifty  cents  ;  for 
noting  the  non-acceptance  or  non-payment  of  a  bill 
of  exchange,  order,  draft  or  check,  or  the  non- 
payment of  a  promissory  note,  seventy-five  cents; 
and  for  each  notice  of  the  non-acceptance  or 
non-payment  of  a  bill,  order,  draft,  cheek  or  note 
given  to  a  party  liable  for  the  payment  thereof, 
tucnty-five  cents:  provided,  that  the  whole  cost  of 
protest,  including  necessary  notices  and  the  record, 
when  the  bill,  order,  draft,  check  or  note  is  of  the 
amount  of  five  hundred  dollars  or  upwards,  shall 
not  exceed  two  dollars  ;  and  when  it  is  less  than 
five  hundred  dollars,  shall   not  exceed  one  dollar 


42  NOTARIES   PUBLIC. 

and  fifty  cents ;  and  the  whole  cost  of  noting,  in- 
cluding recording  and  notices,  shall  in  no  case 
exceed  one  dollar  and  twenty-five  cents.1 

LIABILITY    OF    NOTARIES. 

§  98.  A  notary  who  fails  to  make  a  protest  when 
it  is  required,  or  who  neglects  to  give  proper  notice 
to  parties  to  be  charged  in  case  of  dishonor,  will  be 
liable  for  the  loss  occasioned  by  his  neglect ;  but 
where  due  demand  upon  the  promisor  has  been 
made  by  a  bank  with  which  a  note  has  been  left 
for  collection,  a  notary  by  whom  the  note  is  pro- 
tested is  not  liable  for  negligence  in  not  making 
further  demand.2 

RATES    OF    DAMAGES    ON    PROTESTED    BILLS. 

§  99.  When  a  bill  of  exchange,  drawn  or  in- 
dorsed within  the  Commonwealth,  and  payable 
beyond  the  limits  of  the  United  States,  is  duly 
protested  for  non-acceptance  or  non-payment,  the 
party  liable  for  the  contents  of  such  bill  shall,  on 
due  notice  and  demand  thereof,  pay  such  contents 
at  the  current  rate  of  exchange  at  the  time  of  the 
demand,  and  damages  at  the  rate  of  five  per  cent 
upon  such  contents,  together  with  interest  on  the 
contents,  to  be  computed  from  the  date  of  the  pro- 
test ;  and  said  amount  of  contents,  damages  and 

'    Pub.  StS.  ell-  199,  §  21. 

2  Warren  Bauk  v.  Parker,  8  Gray,  221. 


THE    PROTEST    OF    COMMERCIAL    PAPER.  43 

interest  shall  be  in  full  of  all  damages,  charges, 
and  expenses.1 

§  100.  The  rates  of  damages  to  be  allowed  upon 
hills  of  exchange  duly  protested  for  non-accept- 
ance or  non-payment,  if  drawn  or  indorsed  within 
the  Commonwealth,  and  payable  at  a  place  beyond 
its  limits  but  within  the  United  States,  shall,  in 
addition  to  the  contents  of  such  bill,  with  interest 
and  costs,  be  as  follows :  if  payable  in  the  states  of 
Maine,  Now  Hampshire,  Vermont,  Rhode  Island, 
Connecticut,  or  New  York,  two  per  cent ;  if  in  the 
stales  of  New  Jersey,  Pennsylvania,  Maryland,  or 
Delaware,  three  per  cent  ;  if  in  the  states  of  Vir- 
ginia, West  Virginia,  North  Carolina,  South  Caro- 
lina, Georgia,  or  the  District  of  Columbia,  four  per 
cent ;  and  if  in  any  other  other  of  the  United 
States  or  in  the  territories  thereof,  five  per  cent.2 

§  101.  The  rate  of  damages  upon  bills  of  cx- 
change  or  orders  for  the  payment  of  a  sum  of 
money  not  less  than  one  hundred  dollars,  drawn 
or  indorsed  within  the  Commonwealth,  and  payable 
within  the  Commonwealth  at  a  place  not  less  than 
seventy-five  miles  distant  from  the  place  where 
they  are  drawn  or  indorsed,  when  such  bills  or 
orders  are  not  duly  accepted  or  paid,  shall  be  one 
per  cent  in  addition  to  the  contents  thereof,  and 
interest  on  such  contents.3 

1  Pub.  Sts.  eh.  77,  §  18.  »  Ibid.,  §  20.  3  Ibid.,  §  -21. 


44  NOTARIES   PUBLIC. 


CHAPTER    IV. 

POWERS  GIVEN  BY  STATUTE. 

ACKNOWLEDGMENTS    OF   DEEDS. 

§  102.  Notaries  public  may  receive  acknowledg- 
ments of  deeds  made  in  this  Commonwealth  by  the 
grantors,  or  one  of  them,  or  by  the  attorney  execut- 
ing the  deed,  and  the  notary  shall  indorse  a  cer- 
tificate of  such  acknowledgment  upon  the  deed,  or 
annex  the  same  thereto  ; *  and  where  the  acknowl- 
edgment of  a  deed  is  taken  and  certified  by  a 
notary  public,  his  certificate  need  not  be  authenti- 
cated by  his  official  seal.2 

Form  of  Acknowledgment. 
COMMONWEALTH   OF    MASSACHUSETTS. 

S. ss ,189  . 

Then  personally  appeared  the  above-named  , 

and  acknowledged  the  foregoing  instrument  to  be  [his] 
free  act  and  deed,  before  me. 

A.  B.,  Notary  Public. 

i  Pub.  Sts.  ch.  120,  §  6. 

2  Farnutn  v.  Buffmn,  4  Cosh.  260. 


POWERS   GIVEN    BY   STATUTE.  45 

§  103.  Notaries  public  in  this  Commonwealth 
may  take  acknowledgments  of  deeds  conveying 
real  estate  situated  in  the  following  states  and  ter- 
ritories :  Alabama,  Arizona,  Arkansas,  California, 
Colorado,  Connecticut,  Delaware,  Florida,  Idaho, 
Illinois,  Indiana,  Iowa,  Kansas,  Kentucky,  Loui- 
siana (must  be  certified  to  before  a  commissioner 
of  Louisiana),  Maine,  Maryland,  Minnesota,  Missis- 
sippi, Missouri,  Montana,  Nebraska,  New  Hamp- 
shire, North  Carolina,  North  Dakota,  Ohio,  Oklo- 
homa,  Rhode  Island,  South  Dakota,  Tennessee, 
Texas,  Utah,  Vermont,  Virginia,  Washington, 
West  Virginia,  Wisconsin,  Wyoming.  In  the  Dis- 
trict of  Columbia,  Michigan,  New  York,  Oregon, 
Pennsylvania,  and  South  Carolina,  the  authority  of 
the  notary  to  take  acknowledgments  must  be  certi- 
fied to  before  a  clerk  of  court,  under  his  seal.  It 
is  better  in  every  case  to  use  the  notarial  seal. 

ADMINISTRATION    OP    AFFIDAVITS. 

§  104.  Notaries  public  shall  have  the  same  au- 
thority to  administer  oaths  as  justices  of  the  peace;1 
and  all  oaths  and  affidavits  administered  or  taken 
by  a  notary  public,  duly  commissioned  and  quali- 
fied by  authority  of  any  other  state  or  government, 
within  the  jurisdiction  for  which  he  is  commis- 
sioned, and  certified  under  his  official  seal,  shall  be 
a-  effectual  in  this  Commonwealth  as  if  adminis- 
tered or  taken  and  certified  by  a  justice  of  the  peace 
therein.2 

i  Pub.  Sts.  ch.  18,  §  1.  -'  [bid.,  eh.  169,  S  74. 


46  NOTARIES    PUBLIC. 

FORECLOSURE  AFFIDAVITS. 

§  105.  The  certificate  of  an  entry  made  for  the 
breach  of  a  condition  of  a  mortgage  may  be  sworn 
to  before  a  notary  public.1 

OPENING    OF    SAFETY    DEPOSIT    VAULTS. 

§  106.  A  notary  public  who  is  not  an  officer  of 
the  company  shall,  together  with  the  president, 
treasurer  or  superintendent  of  a  company  organ- 
ized under  the  laws  of  this  Commonwealth  for  the 
purpose  of  letting  vaults,  safes  and  other  recep- 
tacles for  valuables,  be  present  when  such  vault 
or  safe  is  opened  because  of  non-payment  of  the 
rent.  The  notary  public  shall  remove  the  contents 
of  the  receptacle,  make  a  list  of  the  same,  and  shall 
seal  up  such  contents  in  a  package,  and  shall  mark 
thereon  the  name  of  the  person  in  whose  name  such 
receptacle  stood  on  the  books  of  the  corporation, 
and  his  address  as  stated  on  said  books ;  and  such 
package  shall  in  the  presence  of  the  notary  and  of 
the  president,  treasurer  or  superintendent  be  placed 
in  one  of  the  storage  vaults  of  the  corporation. 
The  notary  public  shall  set  forth  his  proceedings, 
including  the  list  of  contents  of  the  receptacle  and 
his  estimate  of  the  total  value  of  the  contents,  in 
his  own  handwriting  and  under  his  official  seal,  in 
a  book  kept  by  the  corporation  for  the  purpose. 

1  Murphy  v.  Murphy,  145  Ma.ss.  224. 


POWERS   GIVEN    BY   STATUTE.  47 

The  notary  public  shall  swear  to  this  statement 
before  a  justice  of  the  peace.1 

PROOFS    IN    INSOLVENCY. 

§  107.  A  notary  public  may  take  proofs  in  in- 
solvency. The  creditor  in  person,  or  if  he  is 
unavoidably  prevented  from  being  present,  his 
agent,  must  make  an  oath  before  the  notary  public 
in  substance  as  follows  :  — 

I,  ,   do   swear    that  ,    of  ,  by 

(or  against)  whom  proceedings  in  insolvency  have 
been  instituted,  at  and  before  the  date  of  such  pro- 
ceedings was  and  still  is  justly  and  truly  indebted  to 
me  in  the  sum  of  ,  for  which  sum  or  any  part 

thereof  I  have  not,  nor  has  any  other  person  to  my 
use,  to  my  knowledge  or  belief,  received  any  security 
or  satisfaction  whatever,  beyond  what  has  been  dis- 
posed of  agreeably  to  law.  And  I  do  further  swear 
that  I  have  not  directly  or  indirectly  made  or  entered 
into  any  bargain,  arrangement  or  agreement,  express 
or  implied,  to  sell,  transfer  or  dispose  of  my  claim, 
or  any  part  of  my  claim,  against  said  debtor,  nor  have 
directly  or  indirectly  received  or  taken,  or  made  or 
entered  into  any  bargain,  arrangement  or  agreement. 
express  or  implied,  to  take  or  receive  directly  or  indi- 
rectly any  money,  property,  or  consideration  what- 
soever to  myself,  or  to  any  person  or  persons  to  my 
use  or  benefit,  under  or  with  any  understanding  or 
agreement,  express  or  implied,  whereby  my  vote  for 
1  Sts.  I  ?87,  ch.  89. 


48  NOTARIES   PUBLIC. 

assignee  or  my  assent  to  the  debtor's  discharge  is  or 
shall  be  in  any  way  affected,  influenced  or  controlled, 
or  whereby  the  proceedings  in  this  case  are  or  shall  be 
affected,  influenced  or   controlled.1 

SAVINGS    BANK    AFFIDAVITS. 

§  108.  Notaries  public  may  take  affidavits  under 
their  seals,  to  be  annexed  to  copies  from  the  records, 
books  and  accounts  of  a  savings  bank  and  institu- 
tion for  savings,  incorporated  under  the  laws  of  this 
Commonwealth,  and  these  shall  be  competent  evi- 
dence in  all  cases  equally  with  their  originals. 
The  affidavit  must  set  forth  that  the  affiant  is  the 
officer  having  charge  of  the  original  records,  books 
and  accounts,  and  that  such  copy  is  true  and  cor- 
rect, and  is  full  so  far  as  it  relates  to  the  subject 
matter  therein  referred  to.2 

i  Pub.  Sts.  ck  157,  §§  29-31. 
2  Sts.  1885,  ch.  92. 


PART    IT. 
JUSTICES    OF    THE    PEACE. 


PART  II. 
JUSTICES   OF   THE   PEACE. 


CHAPTER    I. 

ORIGIN    AND    APPOINTMENT. 
ORIGIN. 

§  109.  The  office  of  justice  of  the  peace  is  of  very 
ancient  origin.  The  power  of  justices  of  the  peace, 
under  the  common  law,  was  merely  preventive  and 
provisional,  except  in  the  case  of  the  smaller  class 
of  misdemeanors. 

§  110.  In  the  beginning  justices  of  the  peace 
were  merely  conservators  of  the  peace,  and  they 
had  no  judicial  powers  whatever.  They  were 
merely  officers,  with  the  power  to  arrest  offenders 
for  committing  breaches  of  the  peace  in  their 
presence.  But  when  Edward  III.  came  into  power, 
judicial  authority  w;is  given  to  justices  of  the  peace, 
and  they  were  appointed  by  the  king.1  In  Massa- 
chusetts, justices  of  the  peace  originally  had  the 
power  to  try  the  minor  class  of  causes  both  civil  and 

1  1  Black.  Com  :54'.i ;   4  Black.  Coin.  212. 


52  JUSTICES    OF   THE    PEACE. 

criminal.  But  since  the  passage  of  the  Sts.  1858, 
ch.  138,  §  1,  and  the  Sts.  1877,  ch.  211,  §  1, 
justices  of  the  peace  have  no  power  to  try  cases, 
civil  or  criminal,  nor  have  they  any  power  to  re- 
ceive complaints  or  to  issue  warrants  except  in 
certain  cases. 

§  111.  At  the  present  time,  in  Massachusetts, 
the  powers  of  justices  of  the  peace  are  very  limited, 
and  are  confined  to  certain  ministerial  acts,  which 
are  strictly  defined  by  statutes. 

APPOINTMENT. 

§  112.  All  justices  of  the  peace  shall  be  nom- 
inated and  appointed  by  the  governor,  by  and  with 
the  advice  of  the  council ;  and  every  such  nomina- 
tion shall  be  made  by  the  governor,  and  made  at 
least  seven  days  prior  to  such  appointment.1 

§  113.  It  is  much  easier  to  obtain  the  appoint- 
ment of  justice  of  the  peace  than  that  of  notary 
public.  Any  man  who  is  more  than  twenty-one 
years  of  age,  of  good  character,  a  citizen  of  the 
United  States  and  a  resident  of  Massachusetts, 
may  be  appointed.  But  if  the  applicant  is  not  a 
counsellor  at  law,  it  is  better  to  allege  good  reasons 
for  the  appointment,  on  the  application. 

§  114.  Although  women  cannot  be  appointed 
justices  of  the  peace,  still  women  who  are  attor- 
neys  at   law  may   be    appointed    special   commis- 

1  Mass.  Const.,  Part  II.  ch.  ii.  art.  ix. 


ORIGIN    AND    APPOINTMENT.  53 

sioners,  and  shall  have  the  same  powers  as  justices 
of  the  peace  for  the  following  purposes :  to  ad- 
minister all  oaths  which  may  be  administered  by  a 
justice  of  the  peace  ;  to  take  depositions  and  affi- 
davits ;  to  take  acknowledgments  of  deeds  and 
other  instruments  ;  and  to  issue  summonses  for 
witnesses.1 

§  115.  The  applicant  for  the  office  must  fill  out 
a  blank  similar  in  form  to  the  one  below,  and  which 
may  be  procured  at  the  office  of  the  secretary  of 
state.  The  application  must  be  signed  by  two 
reputable  citizens  of  the  Commonwealth,  and  de- 
posited in  the  executive  office  of  the  State  House. 

COMMONWEALTH   OF   MASSACHUSETTS. 

To  His  Excellency  the  Governor: 

hereby  recommend  ,  of  [residence], 

[business  address],  for  appointment  to  the  office  of 
justice  of  the  peace  for  the  Commonwealth  of  Massa- 
chusetts. 

He  is  a  citizen  of  the  United  States,  a  resident  of 
Massachusetts,  more  than  twenty-one  years  of  age, 
and  of  high  standing  and  character. 


189  . 

1  Sts.  1883,  ch.  252;  Sts.  1889,  ch.  197. 


54  JUSTICES    OF   THE   PEACE. 

§  116.  Every  person  appointed  to  the  office  of 
justice  of  the  peace  shall  before  the  delivery  of  his 
commission  pay  to  the  secretary  of  the  Common- 
wealth a  fee  of  five  dollars.1 

§  117.  Every  person  appointed  by  the  governor 
to  the  office  of  justice  of  the  peace  shall  be  notified 
by  the  secretary  of  the  Commonwealth  of  his  ap- 
pointment, and  if  he  does  not,  within  three  months 
from  the  date  of  such  appointment,  take  and  sub- 
scribe the  oaths  required  to  qualify  him  to  execute 
the  duties  of  the  office  to  which  he  has  been  ap- 
pointed, his  appointment  shall  be  null  and  void ;  and 
the  secretary  shall  forthwith  notify  him  thereof, 
and  request  him  to  return  his  commission  to  be 
cancelled,  and  shall  also  certify  said  facts  to  the 
governor.2 

§  118.  The  following  oath  shall  be  taken  and 
subscribed  by  every  person  appointed  to  the  office 
of  justice  of  the  peace,  before  he  shall  enter  upon 
the  duties  of  his  office,  to  wit :  — 

I,  A.  B.,  do  solemnly  swear  that  I  will  bear  true 
faith  and  allegiance  to  the  Commonwealth  of  Mas- 
sachusetts, and  will  support  the  Constitution  thereof. 
So  help  me  God. 

Provided,  that  when  any  person  shall  be  of  the 
denomination  called  Quakers,  and  shall  decline 
taking  said  oath,  he  shall  make  his  affirmation  in 
the  foregoing  form,  omitting  the  word  "  swear," 

1  Pub.  Sts.  eh.  21,  §  6.  -  Ibid.,  §  4. 


ORIGIN    AND    APPOINTMENT.  55 

and  inserting  instead  thereof  the  word  "  affirm  ;  " 
and  omitting  the  words  "  So  help  me  God,"  and 
subjoining,  instead  thereof,  the  words,  "  This  I  do 
under  the  pains  and  penalties  of  perjury." 1 

§  119.  Justices  of  the  peace  shall  have  jurisdic- 
tion and  the  right  to  act  in  all  counties,  except  as 
is  stated  in  §  184,  jwst,  and  hereafter  all  appoint- 
ments of  justices  of  the  peace  shall  be  made  and 
their  commissions  issued  for  the  Commonwealth.2 

§  120.  In  order  that  the  people  may  not  suffer 
from  the  long  continuance  in  place  of  any  justice 
of  the  peace,  who  shall  fail  of  discharging  the 
important  duties  of  his  office  with  ability  or  fidel- 
ity, all  commissions  of  justices  of  the  peace  shall 
expire  and  become  void,  in  the  term  of  seven  years 
from  their  respective  dates  ;  and  upon  the  expira- 
tion of  any  commission,  the  same  may,  if  neces- 
sary, be  renewed,  or  another  person  appointed,  as 
shall  most  conduce  to  the  well-being  of  the  Com- 
monwealth.8 

§  121.  The  secretary  of  the  Commonwealth  shall 
send  by  mail  to  every  person  commissioned  as  a 
justice  of  the  peace,  a  notice  of  the  time  of  the 
expiration  of  his  commission,  not  more  than  thirty, 
nor  less  than  fourteen  days  before  such  expiration.4 

§  122.  A  person  who  presumes  to  act  as  a  jus- 
tice of  the  peace  after  the  expiration  of  his  com- 

1  Mass.  Const.,  Amend.,  Art.  VI.  2  Pub.  Sts.  ch.  1  .">."),  §  5. 

:;   Ma-s.  ('"list..  Part   II    ch.  iii.  art.  iii. 
4   Pub.  Sts.  ill.  15,  §  14. 


56  JUSTICES   OP  THE   PEACE. 

mission,  and  after  receiving  notice  of  such  expira- 
tion sent  as  stated  in  the  preceding  section,  shall 
be  punished  by  fine  of  not  less  than  one  hundred 
nor  more  than  five  hundred  dollars.1 

MAY   HOLD    OTHER    OFFICES. 

§  123.  The  office  of  justice  of  the  peace  is  not 
subject  to  the  provisions  regarding  plurality  of 
office.  So  that  a  person  may  be  a  justice  of  the 
peace,  and  at  the  same  time  hold  any  other  office 
which  is  within  the  gift  of  the  governor  of  the 
Commonwealth  or  that  of  the  people.2  A  justice 
of  the  peace  may  be  a  register  in  bankruptcy,  or 
may  hold  a  judicial  office  under  the  laws  of  the 
United  States.3  He  shall  be  exempt  from  watch 
and  ward  duties.4 

§  124.  The  governor  with  the  advice  and  con- 
sent of  the  council  shall  from  time  to  time  desig- 
nate and  commission  in  the  several  counties  a 
suitable  number  of  justices  of  the  peace  as  trial 
justices,  and  may  at  any  time  revoke  such  desig- 
nation.5 

FALSELY   ASSUMING   TO    BE    A    JUSTICE. 

§  125.  Whoever  falsely  assumes  or  pretends  to 
be  a  justice  of  the  peace,  and  takes  upon  himself 

1  Pub.  Sts.  ch.  205,  §  24. 

2  Mass.  Const.,  Part  II.  ch.  vi.  art.  ii.  cl.  2  ;  Amend.,  Art.  VIII. 
8  Pub.  Sis.  ch.  160,  §§  14,  15. 

4  Ibid.,  ch.  34,  §  6.  6  Ibid.,  ch.  155,  §  7. 


ORIGIN   AND   APPOINTMENT.  57 

to  act  as  such,  or  to  require  any  person  to  aid  or 
assist  him  in  a  matter  pertaining-  to  the  duty  of 
such  officer,  shall  be  punished  by  imprisonment  in 
the  jail  not  exceeding  one  year,  or  by  fine  not 
exceeding  four  hundred  dollars.1 

i  Pub.  Stats,  ch.  205,  §  23. 


58  JUSTICES   OF   THE  PEACE. 


CHAPTER  II. 

DEPOSITIONS. 
METHOD    OP   TAKING. 

§  126.  When  a  witness  whose  testimony  is 
wanted  in  a  civil  cause  or  proceeding  pending  in 
this  Commonwealth,  lives  more  than  thirty  miles 
from  the  place  of  trial,  or  is  about  to  go  out  of  the 
Commonwealth  and  not  to  return  in  time  for  the 
trial,  or  is  so  sick,  infirm  or  aged,  as  to  make  it 
probable  that  he  will  not  be  able  to  attend  at  the 
trial,  his  deposition  may  be  taken  as  is  hereinafter 
stated.1 

§  127.  When  a  deposition  is  taken  with  a  view 
to  a  future  trial,  it  is  always  subject  to  contingen- 
cies. Therefore  a  deposition  which  is  certified  by 
the  justice  of  the  peace  who  took  it  that  it  was 
taken  because  the  witness  was  about  to  go  out  of 
the  Commonwealth,  is  admissible  if  the  witness  is 
out  of  the  state  at  the  time  of  the  trial,  although 
he  testifies  in  the  deposition  that  he  has  no  present 
purpose  of  leaving  the  state.2 

1  Pub.  Sts.  ch.  169,  §  24. 

2  Livesey  v.  Bennett,  14  Gray,  131. 


DEPOSITIONS.  59 

§  128.  At  any  time  after  the  cause  is  commenced 
by  the  service  of  process,  or  after  it  is  submitted  to 
arbitrators  or  referees,  either  party  may  apply  to 
a  justice  of  the  peace,  who  shall  issue  a  notice  to 
the  adverse  party  to  appear  before  said  justice  or 
any  other  justice  of  the  peace,  at  the  time  and 
place  appointed  for  taking  the  deposition,  and  to 
put  such  interrogatories  as  he  thinks  fit.1 

§  129.  The  brother-in-law  of  one  who  as  stake- 
holder is  made  a  party  to  a  suit  in  equity,  is  not 
disqualified  to  take  a  deposition  in  the  case  as  a 
justice  of  the  peace.  The  stakeholder  has  no  in- 
terest in  the  suit,  for  he  was  merely  a  trustee  for 
both  parties,  and  his  brother-in-law,  the  justice  of 
the  peace  who  took  the  deposition,  cannot  be  said 
therefore  to  be  related  to  any  party  in  interest  in 
the  suit.2 

§  130.  The  notice  may  be  served  on  the  adverse 
party  or  his  agent  or  attorney ;  and  when  there 
are  several  plaintiffs,  defendants  or  parties,  on 
either  side  n  notice  served  on  cither  of  them  shall 
be  sufficient.3 

^  lot.  Where  an  attorney  puts  his  name  on  the 
record  as  attorney  to  one  of  the  parties  in  an 
action,  notice  given  to  him  of  the  taking  of  a 
deposition  will  be  sufficient,  the  party  whom  he 
represents  being  estopped  by  the  record  to  allege 
that  he   appeared    without   authority.4 

1  Pub.  Srs.  ch.  169,  §  25.  2  Culvor  <•.  Benedict,  18  Gray,  7. 

■   Pub.  Sts.  ih.  169,  §  26.  4   Smith  o.  Bowditch,  7  Pick.  137. 


60  JUSTICES   OF   THE   PEACE. 

§  132.  The  notice  shall  be  served  by  delivering 
an  attested  copy  thereof  to  the  person  to  be  noti- 
fied, or  by  leaving  such  copy  at  his  place  of  abode, 
not  less  than  twenty-four  hours  before  the  time 
appointed  for  taking  the  deposition,  and  also 
allowing  time  for  his  travel  to  the  place  appointed, 
not  less  than  at  the  rate  of  one  day,  Sundays 
excluded,  for  every  twenty  miles'  travel.1 

§  133.  The  reading  to  the  adverse  party  of  a 
notice  of  the  time  and  place  appointed  for  the 
taking  of  a  deposition,  is  not  a  legal  service  of 
such  notice.2 

§  134.  The  object  of  the  statute  is  very  clear. 
The  person  notified  shall  have  not  less  than 
twenty-four  hours'  notice  before  the  time  required 
for  his  attendance ;  and  if  he  has  to  travel  to  the 
place  of  attendance,  he  shall  have  sufficient  time 
for  that  purpose,  not  less  than  at  the  rate  of  one 
day  for  every  twenty  miles'  travel.  The  time  and 
distance  are  measured  by  hours,  and  therefore 
fractions  of  a  day  may  be  computed  both  as  to 
notice  and  the  time  necessary  to  reach  the  place  of 
appointment.3 

§  135.  The  general  rule  of  law  is,  that  every 
witness  must  give  his  evidence  in  person  before 
the  court  and  jury,  so  that  they  may  be  able  to 

1  Pub.  Sts.  ch.  169,  §  27. 

2  Young  v.  Capen,  7  Met.  287. 

8  Hubbard,  J.,  iu  City  Bauk  at  Providence  v.  Fullcrtou,  11 
Met.  78. 


DEPOSITIONS.  61 

judge  of  his  credibility  by  his  appearance  and 
manner  of  testifying.  There  are  exceptions  to 
this  rule  founded  on  considerations  of  convenience 
and  necessity.  But  if  a  party  desires  to  use  the 
testimony  of  an  absent  witness,  this  can  only  be 
done  by  showing  that  the  provisions  of  law  regu- 
lating the  mode  of  depositions  have  been  complied 
with.  If  any  essential  requisite  is  omitted,  the 
deposition,  however  full  and  accurate  it  may  be 
in  other  respects,  is  not  legal  evidence.  The  in- 
tent of  the  statute  was,  in  providing  that  the 
adverse  party  must  have  twenty-four  hours'  notice 
of  the  time  for  taking  the  deposition,  that  a  party 
should  not  be  suddenly  called  upon  at  the  pleasure 
of  his  adversary  to  attend  to  the  taking  of  material 
testimony,  without  having  some  time  for  prepara- 
tion and  to  procure  the  attendance  of  counsel.1 

Form  of  Notice  to  Adverse  Party. 

COMMONWEALTH  OF  MASSACHUSETTS. 

S.  \  ss. 

To  A.  B.,  of  B.,  in  the  County  of  M.,  Greeting. 

Whereas  C.  D..  of  W.,  in  the  County  of  M.  has  re- 
quested me  to  take  the  deposition  of  E.  F.  of  R.,  in  the 
Count)'  of  E.,  to  be  used  in  an  action  of  [tort  or  con- 
tract] pending  between  you  and  the  said  C.  D.  and  the 
[house,  office,  or  store]  of  G.  H.  in  said  R.,  and  the 

1  Bigelow,  C.  J.,  in  Huut  c.  Lowell  Gas  Light  Co.,  1  Allen,  347. 


62  JUSTICES    OF   THE   PEACE. 

day  of  ,  in  the  year  of  our  Lord  one  thousand 

eight  hundred  and  ninety-  ,  at  of  the  clock 

in  the  noon,  are  appointed  the  time  and  place  for 

the  said  deponent  to  testify  what  he  know  relating 
to  said  action.  You  are  hereby  notified  that  you  may 
then  and  there  be  present,  and  put  such  interrogatories 
as  }Tou  majT  think  fit. 

Given  under  my  hand  and  seal,  at  ,  on  the 

da}T  of  ,  in  the  year  of  our  Lord  one 

thousand  eight  hundred  and  ninety- 

S.  P.,  | 

Justice  of  the  Peace,  j  LSEAL-.J 


§  136.  Instead  of  the  written  notice  before  pre- 
scribed, the  notice  may  be  given  verbally  by  the 
justice  taking  the  deposition,  or  it  may  be  wholly 
omitted  if  the  adverse  party  or  his  attorney  in 
writing  waives  the  right  to  it.  But  where  the 
adverse  party  does  not  appear  to  defend  within 
the  time  required  by  law,  the  justice  may  take  the 
deposition  without  giving  any  notice.1 

§  137.  The  deponent  shall  be  sworn  or  affirmed 
to  testify  the  whole  truth,  and  nothing  but  the 
truth,  relating  to  the  cause  for  which  the  deposi- 
tion is  taken.  He  shall  then  be  examined  by  the 
justice,  and  the  parties  if  they  think  fit,  and  his 
testimony  shall  be  taken  in  writing.2 

1  Pub.  Sts.  ch.  169,  §  28  ;  Sts.  1883,  ch.  188,  §  1. 

2  Pub.  Sts.  ch.  169,  §  29. 


DEPOSITIONS.  C3 

§  138.  The  party  producing  the  deponent  shall 
be  allowed  first  to  examine  him,  either  upon  verbal 
or  written  interrogatories,  on  all  the  points  which 
he  deems  material  ;  the  adverse  party  may  then 
examine  him  in  like  manner  ;  after  which  either 
party  may  propose  such  further  interrogatories  as 
the  case  may  require.1 

§  139.  The  deposition  shall  be  written  by  the 
justice,  or  by  the  deponent,  or  by  some  disinter- 
ested person  in  the  presence  and  under  the  direc- 
tion of  the  justice,  and  it  shall  be  carefully  read  to 
or  by  the  deponent,  and  shall  then  be  subscribed 
by  him.2 

§  140.  A  deposition  which  is  certified  as  made 
and  subscribed  by  the  deponent  is  sufficient,  for 
the  meaning  seems  to  be  that  the  deposition  was 
written  either  by  the  deponent  himself,  or  by  the 
justice,  or  by  some  other  person  by  the  direction  of 
the  justice  ;  and  that  it  was  read  to  or  by  the 
deponent.  For  if  it  were  not  so  written  and  read, 
it  would  seem  that  the  justice  could  not  certify  of 
his  own  knowledge  that  the  deposition  was  made 
by  the  deponent.3 

§  141.  Exhibits  and  documents  annexed  to  a 
deposition  arc  not  required  to  be  in  the  handwrit- 
ing of  the  justice  of  the  peace  or  of  some  person 
appointed  by  him.  Thus  it  is  no  objection  to  a 
deposition  that  the  bill  of  items  of  the  plaintiff's 

>  Pub.  Sts.  ch.  169,  §  30.  -  Ibid.,  §  31. 

8  Browu  v.  King,  5  Met.  183. 


64  JUSTICES   OF   THE   PEACE. 

account  annexed  to  the  deposition,  and  sworn  to 
by  the  deponent,  is  not  in  the  handwriting  of  the 
justice  of  the  peace  who  took  the  deposition,  or  of 
the  deponent,  or  of  some  disinterested  person.1 

§  142.  The  justice  shall  annex  to  the  deposition 
a  certificate  of  the  time  and  manner  of  taking  it, 
the  person  at  whose  request,  the  cause  or  suit  for 
which  it  was  taken,  and  the  reason  for  taking  it, 
and  stating  also  whether  the  adverse  party  at- 
tended, and  if  not,  stating  the  notice,  if  any,  that 
was  given  to  him.2 

§  143.  The  testimony  of  witnesses  in  the  form 
of  depositions  cannot  be  received,  unless  there  has 
been  a  full  compliance  with  the  actual  and  positive 
requirements  of  the  law.  Therefore  if  the  certifi- 
cate of  the  justice  who  took  the  deposition  does 
not  state  that  the  deponent  was  sworn  to  tell  the 
truth,  the  whole  truth,  and  nothing  but  the  truth, 
relating  to  the  cause  for  which  the  deposition  is 
taken,  the  law  has  not  been  complied  with  and 
the  deposition  will  be  of  no  effect.3 

§  144.  It  is  the  duty  of  a  justice  of  the  peace 
taking  a  deposition  to  state  in  his  certificate  "  the 
reason  for  taking  it ; "  but  it  is  not  necessary  for 
the  certificate  to  show  in  what  manner  or  by  what 
evidence  the  justice  of  the  peace  was  satisfied  of 

1  Marvin  v.  "Raigan,  12  Cush.  132. 

2  Tub.  Sts.  ch.  169,  §  32. 

8  Simpson  v.  Carleton,  1  Allen,  116;  Hitchings  v.  Ellis,  1  Allen, 
475  ;  Bacon  v.  Rogers,  8  Allen,  146. 


DEPOSITIONS.  65 

the  existence  of  the  cause  for  the  taking.  It  is 
sufficient  that  he  certifies  to  the  fact  upon  his 
official  responsibility.1 

§  145.  If  the  certificate  of  a  justice  of  the  peace 
to  a  deposition  shows  that  the  deponent  was  sworn 
to  testify  in  relation  to  an  action  pending  between 
A.  13.  and  C.  D.,  it  is  sufficient,  although  it  appears 
that  another  action  with  the  same  title  is  pending 
in  the  same  court.2 

$  140.  Where  the  deposition  and  the  certificate 
are  inclosed  together,  scaled  up  and  directed  to  the 
clerk  of  the  court  by  the  justice  of  the  peace,  the 
certificate  is  annexed  to  the  deposition  within 
the  meaning  of  the  statute.  If  not  the  best,  it  is 
one  method  of  annexation.3 

Certificate  of  Justice  to  be  annexed  to  Deposition. 

COMMONWEALTH    OF   MASSACHUSETTS. 


b.  v  ss. 

This  is  to  certify  that  E.  F.,  the  above-named  depo- 
nent, appeared  before  me  at  o'clock,  M., 
on  the  day  of  ,  a.  d.  189  ,  at  [state 
place],  and  gave  the  foregoing  deposition,  to  be  used 
in  an  action  of  [tort  or  contract]  now  pending  between 
A.  B.,  of  B.,  in  the  county  of  M.,  and  C.  D.,  of  W.,  in 

1  Littleliale  v.  Dix,  11  Cush.  365. 

-  Halo  v.  Silloway,  :$  Allen,  358. 

:l  Shaw  >■.  McGregory,  105  Mass.  100. 


66  JUSTICES   OF   THE   PEACE. 

the  said  county  of  M.,  before  the  Court  for  the 

count\T  of  ;  that  prior  to  his  examination  the 

said  deponent  was  duly  sworn  by  me  to  testify  the 
truth,  the  whole  truth,  and  nothing  but  the  truth,  relat- 
ing to  the  cause  for  which  said  deposition  is  taken  ; 
that  both  parties  to  the  said  action  had  an  opportunity 
to  examine  the  said  deponent  as  in  the  statute  provided  ; 
that  the  said  deposition  was  reduced  to  writing  by  me  ; 
that  it  was  carefully  read  to  the  said  deponent,  and  was 
then  subscribed  by  him  ;  that  the  said  deposition  was 
taken  at  the  request  of  the  [plaintiff  or  defendant]  in 
said  action,  the  said  deponent  being  ,  and  that 

the  [plaintiff  or  defendant]  in  said  action  attended  at 
the  taking  of  said  deposition  [if  the  adverse  party  did 
not  attend,  state  the  notice,  if  an}r,  that  was  given 
him]. 

Dated  at  this  day  of  ,  a.  d.  189  . 

S.  P., 

Justice  of  the  Peace. 

§  147.  The  deposition  shall  be  delivered  by  the 
justice  to  the  court,  arbitrators,  referees  or  other 
persons  before  whom  the  cause  is  pending,  or  shall 
be  inclosed  and  sealed  by  him,  and  directed  to 
them,  and  shall  remain  sealed  until  opened  by 
them.1 

§  148.  As  the  deposition  with  the  annexed  cer- 
tificate is  in  the  possession  of  the  justice  of  the 

1  Tub.  Sts.  ch.169,  §33. 


DEPOSITIONS.  67 

peace  until  it  is  transmitted  by  him,  he  may  cor- 
rect any  error  or  supply  by  additional  statements 
any  deficiency  which  he  may  discover  in  the  cap- 
tion. But  after  it  has  been  delivered  to  the  court 
or  tribunal  where  it  is  to  be  used,  the  deposition 
is  in  their  custody,  and  no  alteration,  change  or 
amendment  in  the  certificate  of  the  justice  of  the 
peace  accompanying  it  can  be  made  without  their 
order  or  permission.1 

SUMMONING    OF    WITNESSES. 

§  149.  A  witness  may  be  summoned  and  com- 
pelled to  give  his  deposition  at  a  place  within 
twenty  miles  of  his  place  of  abode,  in  like  manner 
and  under  the  same  penalties  as  he  may  be  sum- 
moned and  compelled  to  attend  as  a  witness  before 
a  court.2 

§  150.  A  witness  not  having  his  place  of  abode 
in  this  Commonwealth,  but  being  at  the  time  herein, 
may  be  summoned  and  compelled  to  give  his  depo- 
sition at  any  place  within  ten  miles  of  the  place  at 
which  the  summons  is  served  upon  him,  in  like 
manner  and  under  the  same  penalties  as  he  may  be 
summoned  and  compelled  to  attend  as  a  witness 
before  a  court  .:i 

i   Hitcbings  v.  Ellis  1  Allen,  476. 

-  Pub.  Ste.  ch.  i  69,  §38.  3  Ibid.,  §  M. 


68  JUSTICES    OF    THE    PEACE. 

Form  of  Deposition  Summons. 
COMMONWEALTH   OF   MASSACHUSETTS. 


S.  Vss, 

To  E.  F.  of  R.,  in  the  county  of  E.,  Greeting. 

Whereas  C.  D.  of  W.  in  the  county  of  M.,  has  re- 
quested me  to  take  your  deposition,  to  be  used  in  ail 
action  now  pending  between  him  and  A.  B.  of  B.,  in  the 
county  of  M.,  and  the  [house,  office,  or  store]  of  G.  H. 
in  said  R.,  and  the  day  of  ,  in  the  year 

of  our  Lord  one  thousand  eight  hundred  and 
at  of  the  clock  in  the  noon,  are  appointed 

the  time  and  place  for  taking  the  same  deposition. 

You  are  hereby  required,  in  the  name  of  the  Com- 
monwealth of  Massachusetts,  then  and  there  to  appear, 
to  testify  what  you  know  relating  to  the  said  action. 
Hereof  fail  not. 

Given  under  my  hand  and  seal,  at  aforesaid, 

the  day  of  ,  in  the  year  of  our  Lord  one 

thousand  eight  hundred  and 


S.  T., 
Justice  of  the  Peace. 


V  [seal.] 


§  151.  A  witness  may  be  summoned  and  com- 
pelled in  like  manner  and  under  the  same  penalties 
as  are  prescribed  in  chapter  169  of  the  Public  Stat- 
utes, to  give  his  deposition  in  a  cause  pending  in  a 
court  in  any  other  state  or  government;  which  deposi- 
tion may  be  taken  before  a  justice  of  the  peace  in  this 


DEPOSITIONS.  69 

Commonwealth,  or  before  commissioners  appointed 
under  the  authority  of  the  state  or  government  in 
which  the  suit  is  pending  ;  and  if  the  deposition  is 
taken  before  such  commissioners,  the  witness  may 
be  summoned  and  compelled  to  appear  before  them, 
by  process  from  a  justice  of  the  peace  in  this  Com- 
monwealth.1 

DEPOSITIONS   TO    PERPETUATE   TESTIMONY. 

§  152.  When  a  person  is  desirous  to  perpetuate 
the  testimony  of  another  person  or  of  himself,  he 
shall  make  a  statement  in  writing  setting  forth 
briefly  and  substantially  his  title,  claim  or  interest 
in  or  to  the  subject  concerning  which  he  desires  to 
perpetuate  the  evidence,  and  the  names  of  all  other 
persons  interested  or  supposed  to  be  interested 
therein,  and  also  the  name  of  the  witness  proposed 
to  be  examined  ;  and  shall  deliver  said  statement 
to  two  justices  of  the  peace,  one  of  whom  shall  be 
either  a  judge  or  register  of  probate  and  insolvency, 
a  clerk  of  the  supreme  judicial  court,  a  master  in 
chancery,  or  a  counsellor  at  law,  requesting  them 
to  take  the  deposition  of  said  witness.2 

$  153.  The  justices  shall  thereupon  cause  notice 
to  be  given  of  the  time  and  place  appointed  for  tak- 
ing the  deposition  to  all  persons  mentioned  in  said 
statement  as  interested  in  the  case.  The  notice 
shall  be   given   in  the  manner   prescribed  in  this 

1   l'uli.  StS.  eh.  169,  §  44.  •-'   [bid.,  $  4."). 


70  JUSTICES   OP   THE   PEACE. 

chapter  respecting  notice  upon  taking  a  deposition 
in  this  Commonwealth,  to  be  used  in  a  cause  here 
pending ;  and  when  in  the  opinion  of  the  justices 
no  sufficient  provision  is  made  by  law  for  giving 
notice  to  parties  adversely  interested,  they  shall 
cause  such  reasonable  notice  to  be  given  as  they 
deem  proper.1 

§  154.  If  at  the  time  and  place  appointed  for 
taking  the  deposition  the  witness  or  a  person 
interested  appears  and  objects,  the  justices  shall 
not  proceed  to  take  the  same  unless  on  hearing  the 
parties  it  is  made  satisfactorily  to  appear  that  such 
testimony  may  be  material  to  the  petitioner,  and  is 
not  sought  for  the  purpose  of  discovery,  or  of  using 
the  same  in  a  suit  pending  or  thereafter  to  be 
brought  against  said  witness,  and  that  the  peti- 
tioner is  in  danger  of  losing  the  same  before  it  can 
be  taken  in  any  suit  wherein  his  right,  title,  inter- 
est or  claim  can  be  tried.  In  all  cases  the  peti- 
tioner, his  agent  or  attorney  shall,  at  the  request 
of  such  witness  or  of  a  person  interested  in  the 
deposition,  be  examined  on  oath  in  relation  to  the 
reasons  for  taking  the  same.2 

§  155.  The  deponent  shall  be  sworn  and  exam- 
ined, and  his  deposition  shall  be  written,  read  and 
subscribed  in  the  same  manner  as  is  prescribed 
respecting  other  depositions  before  mentioned  ;  and 
the  justices  shall  annex  thereto  a  certificate  under 

1    Pill).  StS.  eh.  169,  §  46.  3  Ibid,  §  47. 


DEPOSITIONS.  71 

their  hands  of  the  time  and  manner  of  taking  it, 
and  that  it  was  taken  in  perpetual  remembrance  of 
the  thing  ;  and  they  shall  also  insert  in  the  certi- 
ficate the  names  of  the  person  at  whose  request 
it  was  taken,  and  of  all  persons  who  were  notified 
to  attend,  and  of  all  who  did  attend  the  taking 
thereof.1 

Form  of  Certificate  to  be  annexed  to  Deposition  to 
Perpetuate  Testimony. 

COMMONWEALTH   OF  MASSACHUSETTS. 

S.  £-ss. 

) 

City  [or  town]  of 

This  day  of  ,  in  the  }-ear  of  our  Lord 

eighteen  hundred  and  ninety-  ,  personally  appeared 

before  us  the  subscribers,  two  justices  of  the  peace  for 
the  said  Commonwealth,  the  aforesaid  deponent,  and 
after  being  carefully  examined  and  duly  cautioned  to 
testify  the  truth,  the  whole  truth,  and  nothing  but  the 
truth,  made  oath  [or  affirmed]  that  the  foregoing  depo- 
sition by  him  subscribed  is  true.  Taken  at  the  request 
of  ,  to  be  preserved  in  perpetual  remembrance 

of  the  tiling.  And  we  duly  notified  all  persons  living 
within  twenty  miles  of  this  place  of  caption  whom  we 
knew  to  be  interested  in  the  propert}-  to  which  said 
deposition  relates  ;  and  attended  [if  any  persons 

so  notified  did  attend]  [or,  we  not  knowing  any  person 

1    Pub.  StS.  cli.  169,  §  48. 


72  JUSTICES    OF   THE   PEACE. 

living  within  twenty  miles  of  said  place  of  caption, 
interested  in  the  property-  whereunto  the  said  deposi- 
tion relates,  did  not  notify  any  persons  to  attend]. 

(  [judge  or  register  of  probate  and  insol- 
S.  T.,  J      vency,  clerk  of  supreme  court,  master 
(      in  chancery,  or  counsellor  at  law]. 

U.V., 

Justices  of  the  Peace. 

§  156.  The  deposition  with  the  certificate,  and 
also  the  written  statement  of  the  party  at  whose 
request  it  was  taken,  shall  within  ninety  days  after 
the  taking  thereof  be  recorded  in  the  registry  of 
deeds  in  the  county  or  district  where  the  land  lies, 
if  the  deposition  relates  to  real  estate,  otherwise  in 
the  county  or  district  where  the  parties  or  some  of 
them  reside.1 

•§  157.  A  witness  may  be  summoned  and  com- 
pelled to  give  his  deposition  in  perpetual  remem- 
brance of  the  thing  as  before  prescribed,  in  like 
manner  and  under  the  same  penalties  as  are  stated 
in  this  chapter  respecting  other  depositions  taken 
in  this  Commonwealth.2 

DEPOSITIONS   BY   PARTIES. 

§  158.  The  testimony  of  parties  may  be  taken  or 
given  by  depositions,  for  the  causes  and  in  the  man- 

i  Pub.  Sts.  ch.  169,  §49.  -  Ibid.,  §  51. 


DEPOSITIONS.  16 

ner  provided  for  other  witnesses,  and  the  expenses 
of  such  depositions  shall  be  taxed  in  the  bill  of  costs 
as  in  the  other  cases.1 

FEES. 

§  159.  The  fees  of  justices  of  the  peace  for  tak- 
ing a  deposition  shall  he  fifty  cents;  for  writing  the 
deposition  and  caption,  at  the  rate  of  twelve  cents 
a  page  of  two  hundred  and  twenty-four  words  ;  and 
for  the  notice  to  the  adverse  party,  twenty  cents ; 
the  justice  shall  certify  on  the  deposition  his  own 
fees  and  those  of  the  deponent,  and  where  the  at- 
tendance of  two  or  more  justices  is  required,  each 
of  them  shall  be  entitled  to  the  fees  prescribed.2 

1  Pub.  Sts.  ch.  169,  §  65.  2  Ibid.,  ch.  199,  §  1. 


74  JUSTICES    OF   THE   PEACE. 


CHAPTER    III.1 

CALLING   OF  MEETINGS. 

CORPORATIONS. 

§  160.  When  by  reason  of  the  death,  absence 
or  other  legal  impediment  of  the  officers  of  a  cor- 
poration there  is  no  person  duly  authorized  to  call 
or  preside  at  a  legal  meeting,  a  justice  of  the  peace 
may,  on  a  written  application  of  three  or  more  of 
the  members,  issue  a  warrant  to  either  of  them, 
directing  him  to  call  a  meeting  by  giving  such 
notice  as  had  been  previously  required  by  law ;  and 
the  justice  may  in  the  same  warrant  direct  such 
person  to  preside  at  the  meeting  until  a  clerk  is 
duly  chosen  and  qualified,  if  no  officer  is  present 
legally  authorized  to  preside.2 

§  161.  The  justice  of  the  peace  who  issues  a  war- 
rant on  the  application  of  three  persons  represent- 
ing themselves  as  members  of  a  corporation,  does 
not  pass  upon  the  question  whether  such  persons 
are  legal  members  of  such  corporation,  or  whether 

1  Should  the  justice  have  occasion  to  issue  warrants  under 
§§  1GO-172  and  1 74-1 7C>,  he  will  find  that  the  essential  parts  are 
stated  with  sufficient  clearness  in  those  sections. 

2  Pub.  StS.  ell.  105,  §11. 


CALLING    OF   MEETINGS.  75 

such  meeting  is,  when  assembled,  a  legal  one,  and 
competent  to  act  on  the  business  for  which  it  is 
assembled.1 

§  162.  A  justice  of  the  peace  upon  the  written 
request  of  a  majority  of  the  acting  directors  of  a 
corporation  may  call  a  special  meeting  of  the  stock- 
holders to  confirm  the  legality  of  the  organization 
of  the  corporation  or  of  any  of  its  proceedings, 
whether  the  corporation  is  formed  under  the  gen- 
eral corporation  law  or  under  special  statutes.2 

AQUEDUCT    CORPORATIONS. 

§  163.  Persons  who  have  associated  by  an  agree- 
ment in  writing  to  become  proprietors  of  an  aque- 
duct for  the  purpose  of  conveying  fresh  water  into 
or  within  a  city  or  town,  or  of  funds  for  establish- 
ing such  aqueduct,  may  apply  in  writing  to  a  jus- 
tice of  the  peace,  stating  the  name  and  style  of 
their  association  and  the  objects  of  their  proposed 
meeting,  and  requesting  him  to  call  the  same. 
The  justice  may  thereupon  issue  his  warrant  stat- 
ing the  time,  place  and  objects  of  the  meeting,  and 
directing  some  one  of  the  persons  applying  to  notify 
the  same.9 

FIRE    DISTRICTS. 

§  164.  If  the  selectmen,  upon  the  application  in 
writing  of  not  less  than  seven  freeholders,  inhabi- 

i  Stevens  ft  Taft,  3  Cray,  489.  -  Pub.  Ste,  eh.  106,  §§  79,  80. 

a  Ibid.,  ch.  110,  §  1. 


76  JUSTICES    OP   THE   PEACE. 

tants  of  a  proposed  fire  district,  requiring  them  to 
notify  a  meeting  of  the  inhabitants  of  the  district 
duly  qualified  to  vote  in  town  affairs,  for  the  pur- 
pose of  considering  the  expediency  of  organizing 
such  district  and  establishing  a  fire  department, 
shall  refuse  or  neglect  to  notify  such  meeting,  a 
justice  of  the  peace  may  notify  the  same.  The 
justice  shall  notify  the  meeting  in  the  same  man- 
ner that  town  meetings  are  notified.1  (See  §  173, 
post. ) 

GENERAL    FIELDS. 

§  165.  Upon  the  application  of  two  or  more  pro- 
prietors of  general  fields  to  a  justice  of  the  peace, 
the  latter  shall  issue  his  warrant  to  one  of  the 
applicants,  directing  him  to  call  a  meeting  of  the 
proprietors,  and  expressing  in  the  warrant  the  time, 
place  and  purpose  of  the  meeting.2 

MEETING-HOUSE    PROPRIETORS. 

§  166.  A  meeting  of  a  corporation  of  proprietors 
of  meeting-houses  to  alter,  enlarge,  repay,  rebuild 
or  remove  the  meeting-house,  may  be  called  by  a 
warrant  issued  by  a  justice  of  the  peace,  on  ap- 
plication in  writing  by  any  five  of  the  members  of 
the  corporation,  which  warrant  shall  be  directed  to 
one  of  the  applicants.3 

1  Pub.  Sts.  ch.  35,  §  42.  -   [bid.,  ch.  1 1 1,  §  22. 

8  Ibid.,  ch.  38,  §  32. 


CALLING    OF    MEETINGS.  77 

PRIVATE    WAYS    AND    BRIDGE    PROPRIETORS. 

§  167.  A  justice  of  the  peace  may  issue  his  war- 
rant for  a  meeting  of  proprietors  of  private  ways  and 
bridges,  when  four  or  more  persons  are  the  pro- 
prietors and  rightful  occupants  of  a  private  way  or 
bridge,  and  three  of  them  make  application  to  such 
just  ire  to  call  a  proprietors' meeting.  The  warrant 
must  set  forth  the  time,  place  and  purpose  of  the 
meeting,  and  shall  be  posted  up  in  some  public 
place  of  the  town  where  the  way  or  bridge  is  situ- 
ated, seven  days  at  least  before  the  time  appointed 
for  the  meeting.1 

RELIGIOUS    SOCIETIES. 

§  168.  A  justice  of  the  peace  may,  upon  the  ap- 
plication of  five  or  more  of  the  qualified  voters,  call 
a  meeting  of  a  religious  society,  in  the  manner  stated 
in  the  following  section,  if  there  arc  no  assessors  or 
committee,  or  if  such  officers  unreasonably  refuse  to 
call  a  meeting. - 

$  169.  Any  justice  of  the  peace  may,  upon  ap- 
plication in  writing  by  live  or  more  of  the  qualified 
voters  of  a  religious  society,  which  is  legally  capable 
of  becoming  a  corporation,  and  so  desires,  issue  his 
warranl  directed  to  some  one  of  the  applicants,  stat- 
in- the  objects  of  the  proposed  meeting,  and  requir- 
ing him  to  warn  the  qualified  voters  of  the  society  to 
meet  at  a  time  and  place  appointed  in  the  warrant. 

1  Pub.  Stats  ili.  j2,  §  26.  -  Ibid.,  ch.  38,  §  n. 


78  JUSTICES   OF   THE   PEACE. 

Upon  due  return  of  the  warrant,  the  same  or  any 
other  justice  of  the  peace  may  preside  at  the  meet- 
ing for  the  choice  and  qualification  of  a  clerk.1 

§  170.  Any  ten  or  more  persons,  male  or  female, 
who  desire  to  form  a  religious  society,  may  make  for 
that  purpose  an  application  in  writing  to  a  justice 
of  the  peace.  Such  justice  may  thereupon  issue  his 
warrant  directed  to  one  of  the  applicants,  stating 
the  objects  of  the  proposed  society,  and  requiring 
him  to  warn  said  persons  to  meet  at  a  time  and 
place  appointed  in  the  warrant.2 

TRUSTEES   OF   METHODIST    EPISCOPAL    CHURCHES. 

§  171.  The  first  meetings  of  the  trustees  of  any 
society  of  the  Methodist  Episcopal  Church  or  of 
the  African  Methodist  Episcopal  Church  may  be 
called  by  a  justice  of  the  peace  upon  the  application 
of  three  or  more  of  the  trustees.  The  provisions 
stated  in  the  three  preceding  sections  and  in  Pub. 
Stats,  ch.  38,  in  relation  to  the  warning  and  organi- 
zation of  meetings  of  religious  societies,  shall,  so 
far  as  the  same  are  applicable,  apply  to  meetings 
for  the  organization  of  such  trustees.3 

SOCIAL   LIBRARY   CORPORATIONS. 

§  172.  Upon  application  of  five  or  more  pro- 
prietors of  a  social  library  corporation,  a  justice  of 
the  peace  may  issue  his  warrant  to  one  of  them, 

1  Pub.  Sts.  ch.  38,  §  25.         2  Ibid.,  ch.  38,  §  26.         3  Ibid.,  §  46. 


CALLING   OP   MEETINGS.  79 

directing  him  to  call  a  meeting-  of  the  proprietors 
at  the  time  and  place  and  for  the  purpose  expressed 
in  the  warrant.1 

TOWN   MEETINGS. 

§  173.  If  the  selectmen  of  a  town  unreasonably 
refuse  to  call  a  town  meeting,  a  justice  of  the  peace, 
upon  the  application  of  ten  or  more  legal  voters  of 
the  town,  may  call  such  meeting  by  a  warrant  under 
his  hand  directed  to  the  constables  of  the  town,  if 
there  are  any,  or,  if  there  is  no  constable,  then  to 
any  of  the  persons  applying  therefor,  directing  them 
to  summon  the  inhabitants  qualified  to  vote  in  town 
affairs  to  assemble  at  the  time  and  place  and  for 
the  purposes  expressed  in  the  warrant.2  During 
the  election  of  a  moderator  at  a  town  meeting,  the 
justice  of  the  peace  calling  such  meeting,  if  the 
meeting  is  so  called,  and  if  neither  the  town  clerk 
nor  a  selectman  is  present,  shall  preside.  A  justice 
of  the  peace,  when  so  presiding,  shall  have  the 
powers  and   perform  the  duties  of  a  moderator.3 

Application  for  a  Toicn  Meeting,  token  the  Selectmen 
have  declined  to  call  one. 

To  S.  T.,  Esq.,  a  Justice  of  the  Peace  for  the  Common- 
wealth of  Massachusetts : 
The  subscribers,  residents  in  and  legal  voters  of  the 
town  of  M.,  in  the  county  of  P.,  show  that  application 

1  Pub.  Sts.  ah.  40,  §  1.3.  -  Sts.   1893,  ch.  417,  §  262. 

8  Ibid.,  §  263. 


80  JUSTICES    OF    THE    PEACE. 

has  been  made  to  [here  state  the  names  of  the  select- 
men], selectmen  of  said  town,  to  call  a  meeting  of  the 
inhabitants  thereof,  duly  qualified  to  vote  at  town  meet- 
ings [here  state  the  purpose  for  which  it  was  sought  to 
call  the  town  meeting]. 

But  said  selectmen  have  unreasonably  refused  to  call 
a  town  meeting  for  those  purposes.  The  said  subscrib- 
ers therefore  request  you  to  issue  a  warrant,  as  the  law 
in  such  cases  directs,  for  calling  a  meeting  of  said 
inhabitants  for  the  purposes  aforesaid. 

Dated  ,  189  . 

(Signed)  [by  ten  or  more  legal 
voters  of  the  town]. 

Warrant. 
P.  |  ss. 

To  W.  H.,  one  of  the  constables  [or  if  there  is  no  con- 
stable, then  to  one  of  the  signers  of  the  application] 
of  the  town  of  M.  in  said  county,  Greeting. 

Whereas  A.  B.  and  nine  [or  more]  other  residents  in, 
and  legal  voters  of,  the  said  town,  have  represented  to 
me  the  subscriber,  a  justice  of  the  peace  for  the  Com- 
monwealth of  Massachusetts,  that  application  has  been 
made  to  [here  state  the  names  of  the  selectmen],  select- 
men of  said  town,  to  call  a  meeting  of  the  inhabitants  of 
said  town,  qualified  to  vote  in  town  meetings  [here  state 
the  purpose  for  which  it  was  sought  to  call  the  town 
meeting],  but  they  have  unreasonably  refused  to  call  a 
meeting  for  those  purposes,  and  have  therefore  made 
application  to  me  to  call  one  for  those  purposes. 

These  are  therefore,   in   the  name  of  the  Common- 


CALLING   OF   MEETINGS.  81 

wealth  of  Massachusetts,  to  require  )'ou  to  notif\T  the 
inhabitants  of  said  town,  qualified  by  law  to  vote  in 
town  affairs,  to  assemble  at  ,  on  ,  the 

day  of  next,  at  o'clock  in 

the  noon,  for  the  purposes  above  mentioned. 

Given  under  my  hand  and  seal  this  day  of 

,  in  the  year  of  our  Lord  eighteen  hundred  and 
ninety 

S.  T., 
Justice  of  the  Peace. 

WATCH    DISTRICTS. 

§  174.  A  justice  of  the  peace,  in  case  of  the  re- 
fusal or  neglect  of  the  selectmen,  may,  upon  the 
application  in  writing  of  not  less  than  seven  free- 
holders of  a  village  which  is  competent  to  establish 
a  watch  district,  the  limits  of  which  shall  he  defined 
in  the  application,  requiring  him  to  notify  a  meet- 
ing of  the  persons  in  such  district  qualified  to  vote 
in  town  affairs,  for  considering  the  expediency 
of  establishing  such  watch  district,  forthwith  give 
notice  to  such  voters,  in  the  manner  in  which 
notice  of  town  meetings  is  given,  to  assemble  at 
some  suitable  place  within  the  district  for  said  pur- 
pose, the  substance  of  which  shall  be  expressed  in 
the  notification.1 

£  175.  When  a  village  in  which  a  watch  district 
may  be  established  belongs  to  two  or  more  towns, 
the  voters  thereof  may  organize  such  district  at  a 

1  Pub.  StB.  ch.  34,  §  9. 
6 


82  JUSTICES    OF   THE   PEACE.     '- 

meeting  called  and  notified  by  a  justice  of  the 
peace,  as  is  stated  in  the  preceding  section,  to 
whom  application  has  been  made  by  at  least  five 
voters  of  each  town  who  are  inhabitants  of  such 
district.1 

PROPRIETORS   OF   WHARVES    AND    COMMON   LANDS. 

§  176.  Upon  the  application  of  five  or  more  pro- 
prietors who  hold  in  common  lands,  wharves  or 
other  real  estate,  and  who  wish  to  form  themselves 
into  a  corporation,  to  a  justice  of  the  peace,  such 
justice  shall  issue  his  warrant  to  one  of  the 
applicants  directing  him  to  call  a  meeting  of  all 
the  proprietors,  and  expressing  in  the  warrant 
the  time,  place,  occasion  and  purpose  of  the 
meeting.2 

i  Pub.  Sts.  ch.  34,  §  10.  2  Ibid.,  ch.  Ill,  §§  1,2. 


ACKNOWLEDGMENT    OF    DEEDS.  83 


CHAPTER    IV. 

ACKNOWLEDGMENT  OF   DEEDS. 

IN   GENERAL. 

§  177.  The  acknowledgment  of  a  deed  shall  be 
by  the  grantors  or  one  of  them,  or  by  the  attorney 
executing  the  deed,  and,  if  made  in  this  Common- 
wealth, shall  be  made  before  a  justice  of  the  peace 
or  notary  public ;  and  the  justice  of  the  peace,  be- 
fore whom  the  acknowledgment  is  made,  shall 
indorse  a  certificate  of  such  acknowledgment  upon 
the  deed,  or  annex  the  same  thereto.1 

§  178.  Taking  the  voluntary  acknowledgment  of 
a  deed  under  our  statutes  is  a  purely  ministerial, 
and  not  a  judicial  act,  nor  in  any  way  connected 
with  a  judicial  proceeding.  The  general  principles 
of  law.  the  nature  of  the  act  and  the  language  of  the 
statute,  all  show  that  any  justice  of  the  peace  may 
take  an  acknowledgment  of  a  deed  in  any  county 
within  the  state.2 

§  179.  The  only  use  of  a  certificate  of  a  justice 
of  the  peace  of  the  acknowledgment  of  a  deed,  is  to 

i  Pub.  Sta.  eh.  120,  §  6. 

2  Learned  V.  Riley,  14  Allen.  109. 


84  JUSTICES   OF   THE   PEACE. 

entitle  the  deed  to  be  recorded.  The  certificate  is 
not  conclusive  evidence  that  the  grantor  executed 
the  deed.1 

Form  of  Acknowledgment  of  a  Deed. 

COMMONWEALTH   OF  MASSACHUSETTS. 

S.  jss.  189  . 

Then  personally  appeared  the  above-named  , 

and  acknowledged  the  foregoing  instrument  to  be 
free  act  and  deed,  before  me. 


Justice  of  the  Peace. 

WHEN   GRANTOR   REFUSES   TO  ACKNOWLEDGE. 

§  180.  If  a  grantor  refuses  to  acknowledge  his 
deed,  the  grantee  or  any  person  claiming  under 
him  may  apply  to  a  justice  of  the  peace  in  the 
county  where  the  land  lies  or  where  the  grantor  or 
a  subscribing  witness  to  the  deed  resides,  and  such 
justice  shall  thereupon  issue  a  summons  to  the 
grantor  to  appear  before  him  at  a  certain  time  and 
place  to  hear  the  testimony  of  the  subscribing  wit- 
nesses ;  which  summons,  with  a  copy  of  the  deed 
annexed,  shall  be  served  seven  days  at  least  before 
the  time  therein  assigned  for  proving  the  deed,  and 
at  such  hearing  or  any  adjournment  thereof  the  due 

i  O'Nei]  v.  Webster,  150  Mass.  572. 


ACKNOWLEDGMENT   OF   DEEDS.  85 

execution  of  the  deed  may  be  proved  by  the  testi- 
mony of  one  or  more  of  the  subscribing  witnesses. 
The  execution  of  a  deed  shall  not  be  proved  in  the 
manner  above  stated,  unless  it  has  at  least  one  sub- 
scribing witness.1 

Application  to  a  Justice  of  the  Peace,  when  a  Grantor 
or  Lessor  refuses  to  acknowledge  a  Deed,  or  a  Lease 
for  more  then  seven  years. 

COMMONWEALTH   OF   MASSACHUSETTS. 

To  S.  T.,  Esq.,  a  justice  of  the  peace  for  the  said  Com- 
monwealth. 
Complains  A.  B.  of  ,  that  C.  D.  of  , 

on  the  da}-  of  ,  in  the  year  of  our  Lord 

eighteen  hundred  and  ninety  ,  signed  and  sealed 

a  deed  conveying  to  him  [in  fee  simple,  fee  tail,  for 
term  of  life,  or  lease  for  more  than  seven  years,  as  the 
case  may  be]  ;  [here  the  premises  may  be  generally 
described],  which  deed  the  said  C.  D.  has  refused,  and 
still  continues  to  refuse,  to  acknowledge  before  a  jus- 
tice of  the  peace.  He  therefore  requests  you  to  issue 
a  summons  to  the  said  C.  D.  to  appear  before  you,  to 
hear  the  testimony  of  the  subscribing  witnesses  there- 
unto, and  that  such  other  proceedings  may  be  had 
thereon  as  the  law  in  such  cases  directs. 

,  189  . 

(Signed)  A.  B. 

l  Puh.  Sts.  ch.  120,  §§  9,  12. 


86  JUSTICES    OF   THE    PEACE. 

Summons  thereon. 
COMMONWEALTH    OF  MASSACHUSETTS. 

S.  }ss. 

To  C.  D.  of 

Whereas  A.  B.  of  ,  has  complained  to  me,  a 

justice  of  the  peace  for  the  said  Commonwealth,  that  on 
the  day  of  ,  you  signed  and  sealed  a 

deed,  conveying  to  him  [in  fee  simple,  fee  tail,  for  term 
of  life,  or  lease  for  more  than  seven  \Tears,  as  the  case  may 
be],  [here  describe  the  premises],  a  copy  of  which  is 
hereto  annexed.  Which  deed,  he  says,  you  have  refused 
and  still  do  refuse  to  acknowledge  before  a  justice  of  the 
peace,  and  has  therefore  requested  me  to  summon  you 
to  appear  before  me,  to  hear  the  testimony  of  the  sub- 
scribing witnesses  thereunto,  and  further  to  proceed 
thereon  as  the  law  in  such  cases  directs. 

I  do  therefore,  in  the  name  of  the  Commonwealth  of 
Massachusetts,  hereby  notify  and  summon  }*ou  to 
appear  before  me,  on  the  day  of  ,  at 

o'clock  in  the  noon,  at  in  , 

in  the  said  county  of  S.,  then  and  there  to  hear  the 
testimony  of  the  subscribing  witnesses  E.  F.  and  G.  H., 
that  such  proceedings  may  be  had  thereon  as  the  law 
of  the  Commonwealth  in  such  cases  directs. 

Given  under  my  hand  and  seal  this  da}'  of 

,  in  the  year  of  our  Lord  189  . 

S.  T., 

Justice  of  the  Peace. 


ACKNOWLEDGMENT   OF   DEEDS.  87 

A  certificate  of  the  proof  of  the  execution  of  a 
deed  shall  be  indorsed  upon  the  deed  or  annexed 
thereto  by  the  justice  of  the  peace  before  whom  such 
proof  is  made,  and  the  justice  of  the  peace  shall 
state  in  his  certificate  whether  the  grantor  was 
present  at  the  hearing.1 

Certificate  to  be  annexed. 
COMMONWEALTH   OF   MASSACHUSETTS. 


r 8S* 


I  hereby  certify,  that  on  this  day  of  , 

in  the  year  of  our  Lord  eighteen  hundred  and  ninet}7- 
,  E.  F.  and  G.  H.,  [or  E.  F.,  one  of]  the  witnesses 
whose  names  are  subscribed  to  the  [foregoing  or  within] 
deed  [or  lease  for  more  than  seven  years,  as  the  case 
may  be],  appeared  before  me  the  subscriber,  a  justice  of 
the  peace  for  the  said  Commonwealth,  and  made  oath 
that  they  [or  he,  as  the  case  may  lie]  saw  the  above  [or 
within]  named  ('.  D.  sign  and  seal  the  above  [or  within] 
deed  [or  lease],  and  that  they  [or  he,  as  the  ease  may 
be]  subscribed  their  names  as  witnesses  thereunto  at 
the  same  time,  the  said  C.  D.  being  present  [or  the  said 
C.  D.,  although  duly  summoned  according  to  law,  was 
not  present,  as  the  case  may  be]  when  they  [or  he]  took 
the  said  oath. 

S.  T.. 
Justice,  of  the  Peace. 

1  I'nk  Sts.  cL  120,  §  1 3 


88  JUSTICES   OF   THE   PEACE. 

ACKNOWLEDGMENT     OF    DEEDS     CONVEYING     PROPERTY 
OUTSIDE   OF   THE   COMMONWEALTH. 

§  181.  Justices  of  the  peace  in  this  Common- 
wealth may  take  acknowledgments  of  deeds  con- 
veying real  estate  situated  outside  of  Massachusetts 
and  in  the  following  states  and  territories  :  Cali- 
fornia, Colorado  (the  certificate  of  the  justice  must 
be  affixed,  and  also  a  certificate  by  the  clerk  of 
some  court  of  record  of  the  county,  city,  or  district 
wherein  the  justice  resides,  under  the  seal  of  such 
court,  that  the  justice  certifying  the  acknowledg- 
ment is  the  officer  he  assumes  to  be,  that  he  has 
authority  by  the  laws  of  Massachusetts  to  take  and 
certify  such  acknowledgment,  and  that  his  signa- 
ture is  genuine),  Connecticut,  District  of  Columbia 
(there  must  be  a  certificate  of  the  register,  clerk 
or  other  public  officer  having  cognizance  of  the 
fact,  under  his  official  seal,  that  at  the  date  of  ac- 
knowledgment the  justice  was  in  fact  a  justice  of 
the  peace),  Florida,  Idaho,  Illinois  (the  official 
character  of  the  justice  must  be  certified  by  the 
clerk  of  the  county  court),  Indiana  (the  acknowl- 
edgment shall  be  certified  by  the  clerk  of  the 
county  court  where  the  justice  resides,  and  at- 
tested by  the  seal  of  the  court),  Iowa  (a  certificate 
of  the  official  character  of  the  justice  and  of  the 
genuineness  of  his  signature  is  required),  Kansas 
(the  acknowledgment  must  be  accompanied  by  a 
certificate  of  the  official   character  of   the  justice 


ACKNOWLEDGMENT   OF    DEEDS.  89 

under  the  hand  of  the  clerk  of  some  court  of  rec- 
ord and  seal  of  the  court),  Louisiana  (the  official 
character  of  the  justice  must  be  properly  verified 
before  a  commissioner  of  the  State),  Maine,  Michi- 
gan, Minnesota  (the  justice  should  state  his  official 
character  in  his  certificate),  Mississippi  (the  official 
character  of  the  justice  shall  be  certified  under  the 
seal  of  some  court  of  record  in  his  county),  Mon- 
tana (the  official  character  of  the  justice  must  be 
certified  under  the  seal  of  the  court,  tribunal  or 
officer  within  and  for  the  county  in  which  the  jus- 
tice of  the  peace  may  be  acting,  which  has  cog- 
nizance of  the  official  character  of  the  justice), 
New  Hampshire,  North  Dakota,  Ohio,  Rhode  Is- 
land, South  Dakota,  Vermont.  In  Nebraska, 
Nevada,  New  York,  North  Carolina,  Oregon,  Penn- 
sylvania, Washington,  Wisconsin,  and  Wyoming, 
the  acknowledgment  must  be  accompanied  by  the 
certificate  of  the  clerk  of  a  court  of  record  of  the 
county  having  a  seal,  showing  the  official  character 
and  the  genuineness  of  the  signature  of  the  justice. 

OF   SHARES    OF   STOCK. 

§  182.  A  justice  of  the  peace  shall  receive  ac- 
knowledgments of  deeds  of  shares  of  stock  which 
are  sold  by  treasurers  of  corporations,  because  of 
the  failure  of  the  proprietors  to  pay  the  assess- 
ments due  upon  the  shares.1 

1   Pub.  Sts.  ch.  106,  §  45. 


90  JUSTICES   OF   THE   PEACE. 

FEES. 

§  183.  The  fees  of  a  justice  of  the  peace  for  tak- 
ing the  acknowledgment  of  a  deed  by  one  or  more 
grantors,  if  done  at  the  same  time,  shall  be  twenty- 
five  cents.1 

1  Pub.  Sts.  ch.  199,  §  1. 


ISSUING    OF    WARRANTS.  91 


CHAPTER   V. 

ISSUING   OF   WARRANTS. 
IN    CRIMINAL   CASES. 

(a)    Warrants.1 

§  184.  The  governor,  with  the  advice  and  con- 
sent of  the  council,  may  from  time  to  time,  upon 
the  petition  of  the  selectmen  of  a  town  included 
within,  the  judicial  district  of  a  district  or  police 
court,  and  in  which  neither  a  justice  nor  the  clerk 
of  such  court  resides,  designate  and  commission 
some  justice  of  the  peace  residing  in  said  town, 
who  may  issue  warrants  returnable  to  said  court 
in  criminal  cases  arising  within  such  judicial  dis- 
trict, and  take  bail  therein.2  The  fee  for  issuing 
a  warrant  under  this  section  shall  be  one  dollar.3 

§  185.  A  justice  of  the  peace  who  has  been  des- 
ignated and  commissioned,  as  is  stated  in  the  pre- 
ceding section,  with  authority  to  issue  warrants  in 
criminal  cases,  may  lawfully  receive  the  complaints 

1  Forms  for  warrants  of  various  kinds  may  be  had  at  the  clerk's 
office  of  the  district  or  police  court  in  the  district  of  which  the  jus- 
tice of  the  peace  is  commissioned  to  issue  warrants  and  take  bail. 

-  Sts.  1884,  cli.  286.  3  pUOi  gts.  ch.  199,  §  1. 


92  JUSTICES   OP   THE   PEACE. 

upon  which  such  warrants  are  issued.  Since  the 
warrants  cannot  be  issued  without  complaints,  au- 
thority to  receive  complaints  is  implied  from  the 
authority  to  issue  warrants.1 

§  186.  A  justice  of  the  peace  who  has  authority 
to  issue  warrants  in  criminal  cases  arising  any- 
where within  a  certain  district,  and  whose  residence 
falls  within  a  new  town  formed  by  the  incorporation 
of  a  part  of  an  old  town  in  the  district,  may  con- 
tinue to  issue  warrants  in  cases  which  arise  within 
the  new  town,  as  well  as  elsewhere  in  the  district.2 

§  187.  A  justice  of  the  peace  has  no  authority 
to  direct  his  warrant  to  a  private  person,  except 
where  it  is  absolutely  necessary,  and  where  the 
necessity  is  expressed  in  the  warrant ;  but  he  must 
direct  to  a  sheriff,  deputy-sheriff  or  a  constable.3 

§  188.  Upon  complaint  made  to  the  justice  of 
the  peace  that  a  criminal  offence  has  been  com- 
mitted, he  shall  examine  on  oath  the  complainant 
and  any  witnesses  produced  by  him ;  shall  reduce 
the  complaint  to  writing,  and  cause  the  same  to  be 
subscribed  by  the  complainant,  and  if  it  appears 
that  such  offence  has  been  committed,  the  justice 
of  the  peace  shall  issue  a  warrant  reciting  the  sub- 
stance of  the  accusation,  and  requiring  the  officer 
to  whom  it  is  directed  forthwith  to  take  the  person 

1  Commonwealth  v.  Taber,  155  Mass.  5 ;  Commonwealth  v. 
O'Hanlon,  ibid.,  198. 

2  Commonwealth  v.  Brennan,  150  Mass,  63. 
8  Commonwealth  v.  Foster,  i  Mass.  493. 


ISSUING   OP    WARRANTS.  93 

accused  and  bring  him  before  the  court  which  the 
justice  of  the  peace  has  the  power  to  issue  war- 
rants returnable  to,  to  be  dealt  with  according  to 
law,  and  in  the  same  warrant  may  require  the 
officer  to  summon  such  witnesses  as  shall  be 
therein  named  to  appear  and  give  evidence  on  the 
examination.1 

§  189.  No  justice  of  the  peace  not  designated 
and  commissioned  as  a  trial  justice  shall  have,  or 
exercise  power,  authority  or  jurisdiction  to  try 
cases,  civil  or  criminal,  or  receive  complaints,  or 
issue  warrants,  except  as  is  stated  in  §  184,  ante, 
and  except  that  a  justice  of  the  peace,  who  is  also 
a  clerk  or  assistant  clerk  of  a  police,  district  or 
municipal  court,  may  receive  complaints  and  issue 
warrants,  returnable  before  some  trial  justice,  or 
police,  district  or  municipal  court,  having  jurisdic- 
tion of  the  examination  of  the  person  charged  with 
the  offence.2 

(b)   Bail. 

$  190.  In  cases  where  the  offence  charged  in  the 
warrant  is  not  punishable  by  death  or  imprison- 
ment in  the  state  prison,  the  justice  may  admit 
the  person  arrested  to  bail  by  taking  from  him  a 
recognizance  with  sufficient  sureties  for  his  appear- 
ance in  the  court  within  the  judicial  district  of 
which  the  offence  charged  was  committed.3 

1  PuIj.  Sts.  ch.  212,  §  15.  -   Ibid.,  eh.  155,  §  6. 

U. id.,  ch.  212.  S  21. 


94  JUSTICES    OF   THE    PEACE. 

§  191.  The  justice  of  the  peace  who  so  admits 
the  person  arrested  to  bail  shall  certify  that  fact 
upon  the  warrant,  and  shall  deliver  the  same  with 
the  recognizance  to  the  officer.1 

IN    OTHER    CASES. 

(a)  Entry  by  Board  of  Health. 

§  192.  When  the  board  of  health  thinks  it  ne- 
cessary for  the  preservation  of  the  lives  or  health 
of  the  inhabitants  to  enter  any  land,  building, 
premises  or  vessel  within  its  town,  for  the  pur- 
pose of  examining  into  and  destroying,  removing 
or  preventing  a  nuisance,  source  of  filth  or  cause 
of  sickness,  and  the  board  or  any  agent  thereof 
sent  for  that  purpose  is  refused  such  entry,  any 
member  of  the  board  or  such  agent  may  make 
complaint  under  oath  to  two  justices  of  the  peace 
of  the  county,  stating  the  facts  of  the  case  so  far 
as  he  has  knowledge  thereof ;  and  said  justices  may 
thereupon  issue  a  warrant  directed  to  the  sheriff 
or  any  of  his  deputies,  to  such  agent  of  the  board, 
or  to  any  constable  of  such  town,  commanding  him 
to  take  sufficient  aid,  and  at  any  reasonable  time 
repair  to  the  place  where  such  nuisance,  source  of 
filth  or  cause  of  sickness  complained  of  may  be, 
and  to  destroy,  remove  or  prevent  the  same,  under 
the  directions  of  the  board.2 

1    Pub.  Sts.  ch.  '212,  §  22. 
-   Pub.  Sts.  ch.  SO,  §  27. 


ISSUING   OF   WARRANTS.  95 

Form  of  the  Warrant. 
COMMONWEALTH  OF  MASSACHUSETTS. 

s.  >  ss. 

To  the  Sheriff  of  our  County  of  S.,  or  an}'  of  his  depu- 
ties, or  any  Constable  of  the  cit}'  [or  town]  of  B., 
or  to  T.,  agent  of  the  Board  of  Health  of  the  said 
city  [or  town]  within  our  said  county,    Greeting: 

Whereas  complaint  under  oath  is  made  to  us,  the 
subscribers,  two  of  the  justices  of  the  peace  for  the 
said  Commonwealth,  by  ,  [a  member  or  agent 

of,  as  the  case  may  be],  the  board  of  health  of  the 
said  city  [or  town]  of  B.,  that  of  the  said  city 

[or  town]  of  B.  has  caused  to  exist  a  [nuisance,  cause 
of  sickness,  or  source  of  filth,  as  the  case  may  be], 
[here  particularly  describe  the  nuisance  and  state  its 
locality],  and  the  same  nuisance  does  still  keep  up  and 
continue.  You  are  therefore,  in  behalf  of  said  Com- 
monwealth, commanded  to  take  sufficient  aid,  and  at 
any  reasonable  time  to  repair  to  said  place  where  said 
[nuisance,  source  of  filth  or  cause  of  sickness]  exists, 
and  to  destroy,  remove  or  prevent  the  same,  under  the 
directions  of  said  board  of  health. 

Given  under  our  hands  and  seals,  this  day  of 

,  in  the  year  of  our  Lord  eighteen  hundred  and 
ninety 

s.  T.,     [seal.] 

V.  V..     [seal.] 

Justices  of  the  Peace. 


96  JUSTICES   OF   THE   PEACE. 

(b)  Entry  of  Premises  of  Gras  Consumer. 

§  193.  If  any  officer  or  servant  of  a  gas-light 
company,  having  been  duly  authorized  in  writing 
by  an  officer  of  the  company,  is  prevented  or  hin- 
dered from  entering  premises  lighted  with  gas 
supplied  by  such  company,  for  the  purpose  of  ex- 
amining or  removing  the  meters,  pipes,  fittings 
and  works  for  supplying  and  regulating  the  supply 
of  gas,  and  of  ascertaining  the  quantity  of  gas 
consumed  or  supplied,  such  officer  or  servant  may 
make  complaint  under  oath  to  a  justice  of  the 
peace,  stating  the  facts  so  far  as  he  has  knowledge 
of  them,  and  the  said  justice  may  thereupon  issue 
a  warrant  directed  to  the  sheriff  or  either  of  his 
deputies,  or  to  a  constable  of  the  city  or  town 
where  such  company  is  located,  commanding  him 
to  take  sufficient  aid,  and  to  repair  to  said  premi- 
ses with  such  officer  or  servant.1 

Form  of  the  Warrant. 
COMMONWEALTH   OF   MASSACHUSETTS. 

S.  |  ss. 

To  the  Sheriff  of  the  County  of  S.,  or  any  of  his  depu- 
ties, or  any  Constable  of  the  city  [or  town]  of  B., 
within  our  said  county,  Greeting: 

Whereas  complaint  under  oath  is  made  to  us,  the 
subscribers,  two  of  the  justices  of  the  peace  for  the  said 
i  Pub.  Sts.  ch.  61,  §  15. 


ISSUING   OF   WARRANTS.  97 

Commonwealth,  by  T..  an  ollieer  [or  servant,  as  the 
case  may  be]  of  the  C.  Company,  a  corporation  organ- 
ized for  the  purpose  of  supplying  gas  to  the  inhabitants 
of  the  said  city  [or  town]  of  B.,  said  T.  being  duly 
authorized,  in  writing,  by  the  [president,  treasurer, 
agent  or  secretary]  of  the  said  company,  that  he  has  been 
prevented  from  entering  the  premises  of  D..  situated  in 
said  city  [or  town]  ofB.  [here  describe  premises  and 
state  locality],  for  the  purpose  of  [here  state  purpose  for 
which  entry  to  the  premises  was  sought].  You  are 
therefore,  in  behalf  of  the  Commonwealth,  commanded 
to  take  sufficient  aid  and  to  repair  to  said  premises 
with  said  T.,  and  cause  him  to  enter  for  the  purpose 
aforesaid. 

( riven  under  our  hands  and  seals,  this  day  of 

,  in  the  year  of  our  Lord  eighteen  hundred  and 
ninety 

S.  T., 

U.  v.. 

Justices  of  the  Peace. 

(c)   Search  for  Liquor  illegally  kept. 

§  194.  If  two  persons  of  full  age,  and  competent 
to  testify,  make  complaint  under  oath  or  affirma- 
tion before  a  justice  of  the  peace  who  is  authorized 
to  issue  warrants  in  criminal  eases,  that  they  have 
reason  to  believe,  and  do  believe,  thai  any  spirit- 
uous or  intoxicating  liquor,  described  in  the  com- 
plaint, is  kept  or  deposited  by  a  person  named 
therein  in  a  store,  shop,  warehouse,  building,  vehi- 
cle, steamboat,  vessel   or  place,  and  is  intended  for 


98  JUSTICES   OF   THE    PEACE. 

sale  contrary  to  law,  or  has  been  brought  into  a 
town  or  city  in  violation  of  the  provisions  of  §  17 
of  chapter  100  of  the  Public  Statutes,  such  justice 
of  the  peace,  upon  its  appearing  that  there  is  prob- 
able cause  to  believe  said  complaint  to  be  true, 
shall  issue  a  warrant  of  search  to  any  sheriff, 
deputy-sheriff,  city  marshal,  chief  of  police,  deputy- 
marshal,  police  officer  or  constable,  commanding 
him  to  search  the  premises  in  which  it  is  alleged 
such  liquor  is  deposited,  and  to  seize  such  liquor, 
with  the  vessels  in  which  it  is  contained,  and  all 
implements  of  sale  and  furniture  used,  or  kept  and 
provided  to  be  used,  in  the  illegal  keeping  or  sale 
of  such  liquor,  and  securely  keep  the  same  until 
final  action  is  had  thereon,  and  return  the  warrant 
with  his  doings  thereon  as  soon  as  may  be  to  the 
court  having  jurisdiction  in  the  place  where  such 
liquor  is  alleged  to  be  kept  or  deposited.1 

Form   of   Complaint   to  search  for   Intoxicating 
Liquor. 

COMMONWEALTH  OF  MASSACHUSETTS. 

M.  >ss. 

To  N.  C,  Esquire,  a  justice  of  the  peace,  authorized  to 

issue  warrants  in  criminal  cases  in  the  town  of  B. 

in  the  county  of  M. 

J.  S.  and  L.  P.,  both  of  said  li.,  and  both  being  of 

full  age  and  competent  to  testify,  in  behalf  of  the  Com- 

i   Pub.  Sis.  cli.  100,§30;  Sts.  1884,  ch.  191  ;  Sts.  1888,  cli.  297,  §  1. 


I -SUING    OF    WARRANTS.  99 

monwcalth  of  Massachusetts  on  oath  complain  that  they 
have  reason  to  believe,  and  do  believe,  that  intoxicating 
liquors,  to  wit  [here  describe  the  liquors,  as  a  certain 
quantity  of  rum,  being  about,  and  not  exceeding 
gallons;  a  certain  quantity  of  gin,  etc.,  according  to 
the  facts]  on  the  day  of  ,  in  the  year 

eighteen  hundred  and  ,  were  and  still  are  kept 

and  deposited  by  D.  E.,  of  said  B.,  in  a  certain  , 

situate  [here  describe  the  building  or  other  place,  with 
particulars  of  its  location  sufficient  to  identify  it]  in 
said  B.,  and  occupied  by  said  1).  E.,  and  which  liquors 
are  intended  by  said  D.  E.  for  sale  in  this  Common- 
wealth, said  D.  E.  not  being  authorized  to  sell  the 
same  in  this  Commonwealth  or  keep  the  same  for  sale, 
for  any  purpose,  by  any  legal  authority  whatever, 
against  (lie  peace  of  the  Commonwealth  and  the  form 
of  the  statute  in  such  case  made  and  provided  ;  and 
said  complainants  pray  for  a  warrant  to  search  said 
,  described  as  aforesaid  for  liquors,  and  that 
the  same  be  declared  to  be  forfeited,  and  that  said  D.  I". 
and  all  other  persons  claiming  an  interest  in  said  liq- 
uors, may  be  summoned  to  appear  before  a  court  having 
jurisdiction  of  the  case,  to  show  cause,  if  any  they  have, 
why  said  liquors  should  not  be  declared  forfeited.  [If 
the  place  intended  to  be  searched  is  a  dwelling-house, 
and  no  tavern,  store,  grocery,  eating-room  or  place  of 
common  resort  is  kept  therein,  the  complaint  should 
conclude  as  follows  :  — ] 

And  !,.T.  S.,  one  of  the  above  complainants,  on  oath, 
say  that  I  have  reason  to  believe,  and  do  believe,  that 
intoxicating  liquor,  such  as  above  mentioned,  has  been 
sold  in  the  house  above  mentioned  [or  has  been  taken 


100  JUSTICES   OF   THE   PEACE. 

from  the  house  above  mentioned  for  the  purpose  of 
being  sold]  b}'  the  occupant  of  said  house,  contrary 
to  law,  within  one  month  next  before  this  dajr,  and  that 
said  liquor  above  mentioned  is  now  kept  in  said  house 
for  sale  by  D.  E.  contrary  to  law,  and  my  belief  afore- 
said is  founded  on  the  following  facts  and  circumstances 
[here  let  such  facts  and  circumstances  be  stated]. 

J.  S. 

L.  P. 

Received  and  sworn  to  at  said  B. ,  before  me  this 
day  of  ,  in  the  year  eighteen  hundred  and  ; 

and  it  appears  to  me  that  there  is  probable  cause  to 
believe  the  foregoing  complaint  to  be  true. 

N.  C,  Justice  of  the  Peace. 

Form  of  Warrant  to  Search  for  and  Seize  Liquors 
unlawfully  kept  for  Sale. 

COMMONWEALTH    OF   MASSACHUSETTS. 
M.  1  ss. 

To  the  Sheriff  of  our  county  of  M.,  or  either 

[L.  S.]        of  his  deputies,  or  any  Constable  of  the 

town  of  B.,  in  said  county,         Greeting: 

Whereas  J.  S.  and  L.  P.,  both  of  said  B.,  and  both 
of  full  age,  and  competent  to  testify,  on  the  day 

of  ,  in  the  year  eighteen  hundred  and  , 

al  said  B.,  in  behalf  of  the  Commonwealth  aforesaid,  on 
oath  complained  to  the  undersigned,  a  justice  of  the 
peace  authorized  to  issue  warrants  in  criminal  cases  in 


ISSUING    OF    WARRANTS.  101 

said  town  of  B.,  that  they  have  reason  to  believe,  and 
do  believe,  that  on  the  da}-  of  ,  in  the 

year  eighteen  hundred  and  ,  at  said  B.,  intoxi- 

cating liquors,  to  wit :  [here  describe  the  liquors  as  in 
the  complaint]  are  kept  and  deposited  by  D.  E.  of  said 
B.,  in  a  certain  ,  situate  [here  describe  the  build- 

ing or  other  place,  as  in  the  complaint]  in  said  B.,  and 
occupied  by  said  I).  E.  as  a  ,  and  that  said 

liquors  were,  and  are,  intended  for  sale  by  the  said 
I).  E.,  in  this  Commonwealth,  contrary  to  law,  —  he, 
said  D.  E.,  not  being  then  and  there  authorized  to  sell 
or  keep  such  liquors  for  sale  in  this  Commonwealth  for 
any  purpose  by  any  legal  authority  whatever:  whereby 
said  Liquors  have  become  forfeited.  [In  case  the  place 
to  be  searched  is  a  dwelling-house,  and  no  tavern,  store, 
grocery,  eating-room  or  place  of  common  resort  is  kept 
therein,  the  warrant  should  contain  the  following  clause. 
But  in  a  warrant  for  searching  any  other  place  besides 
a  dwelling-house,  the  following  clause  should  be  omitted.] 
(And  J.  S.,  one  of  the  said  complainants,  has  duly 
made  oath  that  he  has  reason  to  believe,  and  doth 
believe,  that  intoxicating  liquors,  such  as  are  mentioned 
in  tin-  complaint,  have  been  illegally  sold  in  said  house, 
within  one  month  last  past,  by  the  occupant  thereof  [or 
with  the  permission  and  consent  of  the  occupant 
thereof,  or  have  Keen  taken  from  said  house  for  the 
purpose  of  being  sold]  contrary  to  law.  within  one  month 
lasl  past,  and  thai  Buch  liquors  are  kept  and  depos- 
ited in  said  house  by  said  I).  I-'...  and  intended  for  sale 
in  this  Commonwealth,  contrary  to  law.  and  has,  in  his 
said  oath,  stated  the  following  facts  and  circumstances 
on    which    his   said   belief  was   founded  :   [here    let  the 


102  JUSTICES  OF  THE  PEACE. 

facts  and  circumstances  be  repeated,  as  in  the  com- 
plaint.] ) 

And  said  complainants  have  also  prayed  that  due 
process  may  issue  to  search  for  said  liquors,  and  that 
such  further  proceeding  may  be  had  in  the  premises  as 
to  law  and  justice  in  that  behalf  may  appertain  ;  and 
whereas  it  appears  to  me,  the  subscriber,  on  the  com- 
plaint aforesaid,  that  probable  cause  has  been  shown 
for  the  issuing  of  a  warrant  of  search  thereupon  :  — 

These,  therefore,  are  to  require  you,  in  the  name  of 
the  Commonwealth,  taking  with  3rou  proper  assistants, 
forthwith  to  enter  the  ,  herein  above  described, 

and  make  diligent  and  careful  search  for  all  the  liquors 
herein  above  described,  and  if  such  liquors  are  found 
therein,  to  seize  and  conve}T  the  same,  and  the  vessels 
which  contain  such  liquors,  and  all  implements  of  sale  or 
furniture  used,  or  kept  and  provided  to  be  used,  in  the 
illegal  keeping  or  sale  of  such  liquors,  to  some  place  of 
safet}r,  and  safely  keep  the  same,  to  await  the  final 
action  and  decision  of  the  court  upon  said  complaint. 

Herein  fail  not,  and  make  due  return  of  this  warrant, 
with  your  doings  thereon. 

Witness  my  hand  and  seal  at  said  B.,  this 
day  of  ,  in  the  year  eighteen  hundred  and 

N.  C,  Justice  of  the  Peace. 
(d)    Impounding  Boosts. 

§  195.  When  an  owner  or  keeper  of  beasts  is 
dissatisfied  with  the  claim  of  the  person  impound- 
ing them,  he  may  have  the  amount  for  which  he 
is   liable   ascertained   and   determined   by  two  dis- 


ISSUING    OF    WARRANTS.  103 

interested  and  discreet  persons,  to  be  appointed 
and  sworn  for  that  purpose  by  a  justice  of  the 
peace.1 

FORMS. 

Warrant  for  asct  rtaining  Damage  done  by  Beasts  take  n 
up  ami  Impounded,  to  be  issued  at  the  request  of 
the  Owners  of  such  Beasts. 

To  A.  B.  and  C.  D.  of  ,  two  disinterested  and 

judicious  persons,  Greeting: 

You  are  hereby  appointed  and  empowered  faithfully 
and  impartially  to  estimate  upon  oath  the  damage  done 
to  E.  F.  by  [here  describe  the  beasts],  which  for  that 
cause  have  been  taken  up  by  G.  II.  and  impounded  [here 
state  the  pound  and  place  where  impounded]. 

Given  under  my  hand  this  day  of  ,  in 

the  year  of  our  Lord  eighteen  hundred  and  ninety 

S.  T., 
Justice  of  the  Peace. 

Oath. 

S.  J-  ss. 

The  above  [or  within]  named  A.  B.  and  C.  D.  per- 
sonally appeared  and  made  oath  that  in  estimating  the 
above  [or  within]  mentioned  damages,  they  would  act 
faithfully  and  impartially,  according  to  their  best  skill 
ami  judgment. 

Before  me,  S.  T., 

Justice  of  the  Peace. 
1  Pub.  Sts.  ch.  36,  §  34. 


104  JUSTICES  OP  THE  PEACE. 

Appraisers'  Return. 

B.  ,  189  . 

Pursuant  to  the  within  warrant,  we  have  considered 
the  damage  done  by  the  beasts  within  mentioned,  and 
do  upon  oath  estimate  the  same  at 

A.  B. 
C.  D. 

§  196.  A  justice  of  the  peace  on  an  application 
from  the  person  who  has  impounded  beasts,  and 
who  has  not  received  the  sum  for  which  the  beasts 
were  impounded,  within  fourteen  days  after  notice 
of  the  impounding  had  been  given,  shall  issue  a 
warrant  to  two  disinterested  and  discreet  persons 
to  be  appointed  and  sworn  by  such  justice,  to  as- 
certain and  determine  the  sum  due  from  the  owner 
or  keeper  of  the  beasts.1 

FORMS. 

Warrant  for  Estimating  the  Damages  done  by  Beasts 
taken  up  and  Impounded,  to  be  issued  on  the  appli- 
cation of  the  one  who  Impounded  them. 

To  A.  B.  and  C.  D.  of  ,  two  disinterested  and 

judicious  persons,  Greeting: 

You  are  hereby  appointed  and  empowered  faithfully 
and  impartially  to  estimate  upon  oath  the  damage  done 
to  E.  F.  by  [here  describe  the  beasts],  which  for  that 
cause  have  been  taken  up  and  impounded  by  G.  H.  [in 

i  Pub.  Sts.  ch.  36,  §  35. 


ISSUING    OF    WARRANTS.  105 

such  pound  or  in  such  place],  and  also  in  like  manner 
to  appraise  so  many  of  the  said  beasts  as  shall  be  suffi- 
cient to  answer  the  said  damages  and  all  charges. 

Given  under  my  hand  this  day  of  ,  in 

the  year  of  our  Lord  eighteen  hundred  and  ninety 

S.  T., 

Justice  of  the  Peace. 

Oath. 

S.  |  ss. 

The  above  [or  within]  named  A.  B.  and  C.  D.  person- 
ally appeared  and  made  oath,  that  in  estimating  the 
within  [or  above]  mentioned  damages  and  appraising 
any  of  the  within  mentioned  beasts,  they  would  act 
faithfully  and  impartially,  according  to  their  best  skill 
and  judgment. 

Before  me,  S.  T., 

Justice  of  the  Peace. 

Appraisers'  Return. 

Pursuant  to  the  within  warrant,  we  have  considered 
the  damage  done  by  the  beasts  within  mentioned,  and 
do  upon  oath  estimate  the  same  at 

We  have  also  appraised  the  following  beasts  [or  the 
said  beasts]  to  answer  said  damages  [here  insert  the 
kind  and  price]. 

A.  B. 
C.  1). 


106  JUSTICES   OF   THE   PEACE. 

(e)    Infected  Articles. 

§  197.  When  upon  application  of  the  board  of 
health,  it  appears  to  a  justice  of  the  peace  that 
there  is  just  cause  to  suspect  that  baggage,  cloth- 
ing or  goods,  found  within  the  town,  are  infected 
with  the  plague  or  other  disease  dangerous  to  the 
public  health,  he  shall,  by  warrant  directed  to  the 
sheriff  or  his  deputy,  or  to  any  constable,  require 
him  to  impress  so  many  men  as  said  justice  may 
judge  necessary  to  secure  such  baggage,  clothing 
or  goods,  and  to  post  said  men  as  a  guard  over  the 
house  or  place  where  such  articles  are  lodged.1 

§  198.  The  justice  may  by  the  same  warrant,  if 
it  appears  to  him  necessary,  require  the  officers, 
under  the  direction  of  the  board  of  health,  to 
impress  and  take  up  convenient  houses  or  stores 
for  the  safe  keeping  of  such  articles.2 


\ 


FORM 
of  the  Warrant. 

ss. 


To  the  Sheriff  of  our  County  of  S.,  or  any  of  his  depu- 
ties, or  any  Constable  of  the  city  [or  town]  of  B., 
within  our  said  county,  Greeting  : 

It  appearing  to  me  the  subscriber,  a  Justice  of  the 

Peace  for  the  Commonwealth  of  Massachusetts,   upon 

1   Pub.  sts.  ch.  so.  s;  44.  -  Ibid  .  §  45. 


ISSUING    OF    WARRANTS.  107 

application  of  the  board  of  health  of  said  town,  that 
there  is  just  cause  to  suspect  that  [baggage,  clothing 
or  goods]  at  ,  within  said  town,  are  infected 

with  [here  state  the  disease]  dangerous  to  the  public 
health.  You  are  hereby  directed,  in  the  name  of  the 
said  Commonwealth,  to  impress  [here  state  the  number] 
men  and  secure  said  [baggage,  clothing,  or  goods],  and 
to  post  said  men  as  a  guard  over  [here  state  the  place 
where  the  articles  are],  and  to  take  up,  under  the 
direction  of  said  board  of  health,  such  houses  or 
stores  as  may  be  convenient  for  the  keeping  of  said 
articles. 

Given  under  my  hand  and  seal,  this  day  of 

,  in  the  year  of  our  Lord  eighteen  hundred  and 
ninety 

S.  T., 
Justice  of  the  Peace. 

(f)  Lost  Goods,  Appraisals. 

$  199.  A  justice  of  the  peace,  upon  application 
of  a  finder  of  lost  goods  or  stray  beasts  of  the 
value  of  ten  dollars  or  more,  shall  issue  a  warrant 
directed  to  two  disinterested  persons,  to  be  ap- 
pointed by  such  justice,  and  returnable  into  the 
office  of  the  clerk  of  the  city  or  town  within  seven 
days  from  date,  requiring  them  to  appraise  the  lost 
goods  or  stray  beasts  at  their  true  value.  Such 
persons  shall  be  sworn  by  the  justice.1 

1  Pub.  Sta  cli.  95,  §  4. 


108  JUSTICES   OP   THE   PEACE. 

FORM. 
Warrant  to  appraise  Lost  Goods  or  Stray  Beasts. 

8.  I  ss. 

To  E.  B.  of  ,  and  C.  D.  of  ,  two  dis- 

interested and  judicious  persons,  Greeting  : 

By  virtue  of  the  power  and  authorit\-  to  me  given,  in 
and  by  section  four  of  chapter  ninety-five  of  the  Public 
Statutes,  I  do  hereby  appoint  3'ou  to  appraise  upon  oath, 
at  the  true  value  thereof  in  money,  according  to  your 
best  skill  and  judgment,  [here  mention  the  goods  or 
beasts  found]  found  by  E.  F.  at  ,  and  of  the 

value  of  ten  dollars  or  more.  Having  performed  this 
service,  3011  are  to  make  return  of  this  warrant  into 
the  clerk's  office  of  said  G.  within  seven  days  from  the 
date  hereof. 

Given  under  my  hand  and  seal,  this  da}r  of 

,  in  the  year  of  our  Lord  eighteen  hundred  and 

ninet}' 

S.  T., 

Justice  of  the  Peace. 
Oath. 
S.  }ss.  189  . 

The  above  named  E.  B.  and  C.  D.  personally  appeared 
and  made  oath,  that  they  would  faithfully  and  impar- 
tially perform  the  service  to  which  they  are  appointed 
by  the  above  warrant. 

Before  me,  S.  T., 

Justice  of  the  Peace. 


ISSUING   OF   WARRANTS.  109 

§  200.  A  justice  of  the  peace,  in  case  of  disa- 
greement between  the  owner  and  the  finder  of  lost 
goods,  as  to  what  are  the  proper  charges  for  the 
former  to  pay  to  the  latter,  shall  determine  the 
amount  of  the  charges.1 

(g)    Removal  of  Sick  Persons. 

§  201.  Two  justices  of  the  peace  may,  if  need 
be,  make  out  a  warrant  directed  to  the  sheriff  of 
the  county  or  his  deputy,  or  to  any  constable, 
requiring  them  under  the  direction  of  the  board 
of  health  to  remove  any  person  infected  with  con- 
tagious sickness,  or  to  impress  and  take  up  con- 
venient houses,  lodging,  nurses,  attendants  and 
other  necessaries  for  the  accommodation,  safety 
and  relief  of  the  sick.2 

FORM 
of  the  Warrant. 

S.  i  ss. 

To  the  Sheriff  of  our  County  of  S.,  or  any  of  his  depu- 
ties, or  any  Constable  of  the  city  [or  town]  of  B., 
within  our  said  county,  Greeting  : 

Whereas  complaint  is  made  to  us  the  subscribers,  two 
of  the  justices  of  the  peace  for  the  Commonwealth  of 
Massachusetts,  by  the  board  of  health  of  said  city  [or 
town]  of  B..  that  are  [or  is]  sick  with 

at  the  bouse  of  in  said  town,  and  ought  to  be 

1  Pub.  Sts.  ch.  95,  §  5.  -  Ibid.,  ch,  so.  ^  43. 


110  JUSTICES   OF   THE   PEACE. 

removed  therefrom  for  the  safety  of  the  public  health. 
You  are  hereby  required,  in  the  name  of  the  Common- 
wealth of  Massachusetts,  with  the  advice  and  under  the 
direction  of  the  board  of  health  of  the  said  city  [or 
town]  of  B.,  [to  remove  from  the  house  of  , 

in  said  town,  to  ],  or  [to  impress]  [here  state 

the  articles  which  are  judged  necessary  for  the  accom- 
modation, or  safety  and  relief,  of  the  said  , 
as  the  case  ma}T  be] . 

Given  under  our  hands  and  seals,  this  day  of 

,  in  the  year  of  our  Lord  eighteen  hundred  and 

ninety 

S.  T., 

U.V., 

Justices  of  the  Peace. 

(h)  Fees. 

§  202.  The  fees  of  justices  of  the  peace  for 
granting  a  warrant  of  appraisement  of  lost  goods 
or  stray  beasts,  and  in  all  other  cases,  shall  be 
twenty  cents,  and  where  two  or  more  justices  are 
required  to  act,  eacli  is  entitled  to  the  prescribed 
fees.1 

i  Pub.  Sts.  ch.  199,  §  1. 


OATHS    AND    AFFIDAVITS.  Ill 


CHAPTER   VI. 

OATHS   AND   AFFIDAVITS. 
IN   GENERAL. 

§  203.  Justices  of  the  peace  may  administer 
oaths  or  affirmations  in  all  cases  in  which  an  oath 
is  required,  unless  a  different  provision  is  expressly 
made  by  law.1 

§  204.  The  usual  mode  of  administering  oaths 
now  practised  in  this  Commonwealth,  with  the 
ceremony  of  holding  up  the  hand,  shall  be  observed 
in  all  cases  in  which  an  oath  may  be  administered 
by  law.2 

ACK    AND    SCHOOLING    CERTIFICATES. 

§  205.  A  justice  of  the  peace  may  administer 
the  oath  provided  for  in  the  Age  and  Schooling 
certificate  of  1888,  as  follows  :  — 

Age  and  Schooling  <  '<  rtifieate.  Law  of  1888. 

This  certifies  that  I  am  the  [father,  mother,  or 
guardian]  of  [name  of  child],  and  that  [he  or  she]  was 
born  at  [name  of  town  or  city],  in  the  county  of  [name 

i  Pub.  Sts.  eh.  1  .-).->,  §  2.  -  [bid.,  ill.  169,  §  13. 


112  JUSTICES   OF   THE   PEACE. 

of  county,  if  known],  and  state  [or  country]  of  [name], 
on  the  [clay  and  year  of  birth] ,  and  is  now  [number  of 
years  and  months]  old. 

[Signature  of  father,  mother,  or  guardian.] 

[Town  or  city  and  date.] 

Then  personally  appeared  before  me  the  above  named 
[name  of  person  signing],  and  made  oath  that  the 
foregoing  certificate  by  [him  or  her]  signed  is  true  to 
the  best  of  [his  or  her]  knowledge  and  belief. 


Justice  of  the  Peace.1 


COLLECTORS   OF   TAXES. 

§  206.  Justices  of  the  peace  shall  receive  the 
affidavits  of  collectors  of  taxes  of  the  service  of 
notice  on  the  purchaser  of  real  estate  at  a  sale  for 
non-payment  of  taxes,  that  the  tax  title  is  invalid, 
and  also  affidavits  of  the  publication  of  such 
notice ;  affidavits  of  collectors  of  taxes  of  the 
posting  and  publishing  notices  of  intention  to  take 
real  estate  for  taxes  ;  and  affidavits  of  collectors  of 
taxes,  of  no  bid,  and  of  the  non-payment  of  bid- 
ders at  sales  of  real  estate  for  the  non-payment  of 
taxes.2 

NOTARIES   PUBLIC    AND    BANK    OFFICERS. 

§  207.  Justices  of  the  peace  shall  receive  the 
oaths    of   notaries'    public   and    bank    officers  that 

1  Sts.  1888,  ch.  348,  §§  4,  5. 

2  Sts.  1888,  ch.  390,  §§  G7,  70;  Sts.  1892,  ch.  109,  §  1. 


OATHS    AND    AFFIDAVITS.  113 

the  statements  which  they  have  made  concerning 
the  contents  of  safety  deposit  vaults  which  have 
been  opened  for  non-payment  of  rent,  are  true.1 

NOTICES   OF   SALES   OF   PEWS. 

§  208.  An  affidavit  of  a  notice  of  sales  of  pews 
in  a  church  for  the  non-payment  of  assessments, 
in  order  to  be  allowed  as  a  mode  of  proof  of  the 
posting  up  of  the  notification,  must  be  made  before 
a  justice  of  the  peace.*-* 

OFFICERS   OF   RELIGIOUS    SOCIETIES. 

§  209.  A  justice  of  the  peace  may  administer 
thf  oaths  of  office  to  the  clerks,  assessors,  treasurers 
and  collectors  of  religious  societies.  Such  oaths 
shall  be  substantially  the  same  as  are  required  to 
be  taken  by  the  clerk,  assessors  and  collectors  of 
towns.8 

PEDLERS. 

§  '210.  Justices  of  the  peace  shall  certify  the 
oaths  of  pedlers  that  they  are  the  persons  named 
in  their  certificates,  and  that  they  are,  or  have 
declared  their  intention  to  become,  citizens  of  the 
United  States.4 

1   Sts.  1887,  ch.  89.  -  Pub.  Sts.  ch.  38,  §  35. 

[bid.,  ch.  38,  §  14.  *  [bid.,  ch.  68,  §  4. 


114  JUSTICES   OF   THE    PEACE. 

RAILROAD    POLICE. 

§  211.  Railroad  police  officers  shall  be  sworn 
before  any  justice  of  the  peace.1 

INSPECTION    OF   PEDLERS'    LICENSES. 

§  212.  Justices  of  the  peace  may  command  ped- 
lers  to  exhibit  to  them  their  licenses.  The  licenses 
are  granted  for  the  term  of  one  year  by  the  secre- 
tary of  the  Commonwealth  ;  they  must  contain  the 
names  of  the  cities  and  towns  which  the  pedler 
selects,  with  the  sums  to  be  paid  to  the  respective 
treasurers ;  they  may  be  granted  for  the  sale  of 
any  goods,  wares  or  merchandise,  except  jewelry, 
wines,  spirituous  liquors,  playing  cards,  indigo 
and  feathers.2 

FEES. 

§  213.  The  fee  of  a  justice  of  the  peace  for 
administering  an  oath  required  by  law,  except  on 
a  trial  or  examination  before  himself,  whether  to 
one  or  more  persons  at  the  same  time,  shall  be 
twenty-five  cents.3 

i  Sts.  1883,  ch.  65.  2  Pub.  Sts.  ch.  68,  §§  13,  3-5. 

s  Ibid.,  ch.  199,  §  1. 


GENERAL    POWERS    AND    DUTIES.  115 


CHAPTER   VII. 
GENERAL    POWERS   AND   DUTIES. 

APPOINTMENT    OF    APPRAISERS. 

§  214.  A  disinterested  justice  of  the  peace  may 
appoint  appraisers  of  any  part  of  the  estate  of  a 
deceased  person,  which  may  be  in  the  county  in 
which  such  justice  resides.  The  appraisers  shall 
be  three  in  number,  and  shall  be  sworn  to  the 
faithful  discharge  of  their  duties.  The  justice  of 
the  peace  who  has  appointed  the  appraisers,  shall 
issue  an  order  to  them,  in  substance  as  follows  :  — 

-  S3. 

To  ,  of  in  said  county.     You  are 

hereby  appointed  to  appraise  on  oath  the  estate  and 
effects  of  ,  late  of  ,  deceased,  which  may 

he  in  said  county.  When  you  have  performed  that  ser- 
vice, you  will  deliver  this  order  and  your  doings  in  pur- 
suance thereof  to  ,  executor  [or  administrator, 
as  the  case  ma}'  be]  of  said  deceased,  that  he  may  return 
the  same  to  the  probate  court  for  the  county  of 

Given  under  my  hand  this  day  of  ,  in 

the  year 

Justice  <>f  the  Peace.1 
i  Puh.  Sts.  ch.  132,  §§  6,  X. 


116  JUSTICES  OP  THE  PEACE. 

§  215.  The  fee  of  a  justice  of  the  peace  for 
granting  a  warrant  of  appraisement  of  the  estate 
of  a  deceased  person,  shall  be  twenty  cents.1 

ARBITRATION. 

§  216.  All  controversies  which  might  be  the 
subject  of  a  personal  action  at  law  or  of  a  suit  in 
equity  may  be  submitted  to  the  decision  of  one  or 
more  arbitrators  in  the  following  manner :  — 

The  parties  to  all  controversies  which  might  be 
the  subject  of  a  personal  action  at  law  or  of  a  suit 
in  equity,  and  who  wish  to  settle  such  controver- 
sies by  submitting  them  to  the  decision  of  one  or 
more  arbitrators,  shall  appear  in  person,  or  by 
their  lawful  agents  or  attorneys,  before  a  justice 
of  the  peace,  and  shall  there  sign  and  acknowledge 
an  agreement  in  substance  as  follows :  — 

Know  all  men  that  ,  of  ,  and  , 

of  ,  liereb}'  agree  to  submit  the  demand,  a  state- 

ment whereof  is  hereto  annexed  [and  all  other  demands 
between  them,  as  the  case  may  be],  to  the  determina- 
tion of  and  ,  the  award  of  whom,  or  of 
the  greater  part  of  whom,  being  made  and  reported 
within  one  year  from  this  day  to  the  superior  court  for 
the  county  of  ,  the  judgment  thereon  shall  be 
final ;  and  if  either  of  the  parties  neglects  to  appear 
before  the  arbitrators,  after  due  notice  given  him  of  the 

1    Pub.  Sts.  ch.  19«J,  §  1. 


GENERAL    POWERS    AND    DUTIES.  117 

time  and  place  appointed  for  hearing  the  parties,  the 
arbitrators  ma}1  proceed  in  his  absence. 
Dated  this  day  of  ,  in  the  year 


The  justice,  who  may  be  one  of  the  arbitrators, 
shall  subjoin  to  the  agreement  his  certificate,  in 
substance  as  follows  :  — 

Iss. 

Then  the  above  named  and  personally 

appeared  [or  the  above  named  personall}',  and 

said  by  ,  his  attorney,  appeared,  as  the 

case  may  be],  and  acknowledged  the  above  instrument 
by  them  signed  to  be  their  free  act.     Before  me, 


Justice  of  the  Peace.1 


§  217.  Reasonable  compensation  to  arbitrators 
appointed  under  the  provisions  stated  in  the  pre- 
ceding section,  upon  whose  award  judgment  is 
entered,  shall  be  awarded  by  the  supreme  court.2 
The  fees  of  a  justice  of  the  peace  in  a  reference  to 
arbitration,  for  the  agreement  of  submission  and 
acknowledgment,  shall  be  forty  cents.3 

^  218.  A  submission  to  arbitration  to  which  a 
partnership    is    one    party,    must    show   who    are 

1  Pub.  Sts.  eh.  188,  SS  l.  -'• 

-  Sts    1886,  <h.  51,  §  1  ;  Sts.  1887,  ch.  289,  §  1. 

:!   Pub.  Sts.  ch.  188,  §  13. 


118  JUSTICES    OF   THE   PEACE. 

members  of  the  firm,1  and  when  a  submission  to 
arbitration  entered  into  before  a  justice  of  the 
peace,  is  signed  by  several  partners  on  the  one 
part,  it  must  be  acknowledged  by  all  of  the  part- 
ners who  signed  it.2 

AEREST   ON    MESNE   PROCESS. 

§  219.  A  justice  of  the  peace,  except  in  the 
county  of  Suffolk,  may  receive  the  affidavit  of  a 
plaintiff  who  is  seeking  to  arrest  a  person  on 
mesne  process  in  an  action  of  contract.  The  plain- 
tiff must  make  affidavit  and  prove  to  the  satis- 
faction of  the  justice  of  the  peace,  the  following 
statements :  — 

First,  That  he  has  good  cause  of  action,  and 
reasonable  expectation  of  recovering  a  sum  amount- 
ing to  twenty  dollars,  exclusive  of  all  costs  which 
have  accrued  in  any  former  action ; 

Second,  That  he  believes  and  has  reason  to  be- 
lieve that  the  defendant  has  property,  not  exempt 
from  being  taken  on  execution,  which  he  does  not 
intend  to  apply  to  the  payment  of  the  plaintiff's 
claim  ;  and, 

Third,  that  he  believes  and  has  reason  to  believe 
that  the  defendant  intends  to  leave  the  state,  so  that 
execution,  if  obtained,  cannot  be  served  upon  him ; 

Or  (instead  of  the  second  and  third)  that  the 
defendant   is   an    attorney  at  law,  that   the    debt 

1  Wesson  v.  Newton,  10  Cush.  114. 

2  Abbott  v.  Dexter,  6  Cnsh.  108 ;  Horton  v.  Wilde,  8  Gray,  425. 


GENERAL   POWERS    AND    DUTIES.  119 

sought  to  be  recovered  is  for  money  collected  by 
the  defendant  for  the  plaintiff,  and  that  the  de- 
fendant unreasonably  neglects  to  pay  the  same  to 
the  plaintiff. 

The  justice  of  the  peace  must  certify  that  he  is  sat- 
isfied that  the  allegations  in  the  affidavit  are  true.1 

$  -220.  A  justice  of  the  peace,  except  in  the 
county  of  Suffolk,  may  receive  the  affidavit  of  a 
plaintiff  who  is  seeking  to  arrest  a  person  in  an 
action  of  tort,  that  he  believes  that  he  has  a  good 
cause  of  action  against  the  defendant,  that  he 
has  reasonable  expectation  of  recovering  a  sum 
equal,  at  least,  to  one-third  the  damages  claimed 
in  the  writ,  and  that  he  believes  and  has  reason  to 
believe  that  the  defendant  intends  to  leave  the 
state,  so  that  if  execution  be  obtained  it  cannot 
be  served  upon  him. 

These  allegations  in  the  affidavit  must  be  proved 
to  the  satisfaction  of  the  justice  of  the  peace,  and  he 
must  certify  that  he  is  satisfied  that  they  are  true.2 

£  221.  The  fees  of  the  justice  of  the  peace  for 
hearing  an  application  for  a  certificate  to  arrest  on 
mesne  process  in  actions  of  tort  or  of  contract, 
shall  be  one  dollar.3 

POWERS    as   CONSERVATORS   OF   THE   PEACE. 

£  ±1-1.    Justices  of  the  peace  may,  as  conservators 
of  the  peace,  upon  view  of  an  affray,  riot,  assault 
1  Pub.  Ste.  eh.  162,  §  l.  -  [bid.,  S  -2.  a  [bid.,  §  68. 


120  JUSTICES    OF    THE    PEACE. 

or  battery  within  their  respective  counties,  without 
a  warrant  in  writing,  command  the  assistance  of 
every  sheriff,  deputy-sheriff  and  constable,  and  of 
all  other  persons  present,  for  suppressing  the  same, 
and  for  arresting  all  who  are  concerned  therein, 
as  provided  in  chapters  two  hundred  and  eleven 
and  two  hundred  and  twelve  of  the  Public  Statutes. 
Persons  so  arrested  shall  be  brought  before  some 
police,  district  or  municipal  court,  or  trial  justice 
for  examination.1 

§  223.  If  a  prisoner,  lawfully  arrested  without 
a  warrant  by  order  of  a  justice  of  the  peace,  for 
an  assault  committed  in  his  presence,  as  is  stated 
in  the  preceding  section,  escapes,  the  justice  of  the 
peace  may  order  a  constable  to  pursue  and  retake 
the  offender  without  a  warrant.  The  justice  of 
the  peace  has  the  same  authority  to  command  as- 
sistance in  pursuing  and  retaking  an  offender 
whom  he  has  caused  to  be  arrested  for  an  offence 
committed  in  his  presence  and  who  has  escaped, 
that  he  has  to  command  assistance  in  making  the 
original  arrest.2 

§  224.  Powers  of  determination  and  action  of  a 
quasi  judicial  character  are  given  to  justices  of  the 
peace  by  the  statute  stated  in  §  222  ante,  which 
from  their  nature  must  be  exercised  finally  and 
conclusively,  without  a  hearing  or  even  notice  to 
the  parties  who  may  be  affected.3 

1  Pub.  Sts.  eh.  155,  §  1.         -  Com.  v.  McGahey,  11  Gray,  194. 
■'  Salem  v.  Eastern  Railroad  Co.,  98  Mass.  444. 


GENERAL   POWERS    AND    DUTIES.  121 

§  225.  Whoever,  being  required  by  a  justice  of 
the  peace,  upon  view  of  a  breach  of  the  peace  or 
any  other  offence  proper  for  his  cognizance,  to 
apprehend  the  offender,  refuses  or  neglects  to  obey 
such  justice,  shall  be  punished  in  the  manner 
provided  in  Pub.  Sts.  eh.  205,  §  21,  for  refusing- 
assistance  to  a  sheriff;  and  no  person  to  whom 
such  justice  is  known  or  declares  himself  to  be  a 
justice  of  the  peace,  shall  plead  any  excuse  on  pre- 
tence of  ignorance  of  his  office.1 

§  226.  If  persons  to  the  number  of  twelve  or 
more,  being  armed  with  clubs  or  other  dangerous 
weapons,  or  if  persons  to  the  number  of  thirty  or 
more,  whether  armed  or  not,  are  unlawfully,  riot- 
ously or  tumultuously  assembled  in  a  city  or  town. 
it  shall  be  the  duty  of  every  justice  of  the  peace 
living  in  any  such  city  or  town,  to  go  among  the 
persons  so  assembled,  or  as  near  to  them  as  may 
be  with  safety,  and  in  the  name  of  the  Common- 
wealth to  command  all  the  persons  so  assembled 
immediately  and  peaceably  to  disperse;  and  if 
such  persons  do  not  thereupon  immediately  and 
peaceably  disperse,  it  shall  be  the  duty  of  each  of 
said  magistrates  and  officers  to  command  the  as- 
sistance of  all  persons  there  present  in  seizing, 
arresting  and  securing  such  persons  in  custo.lv. 
so  that  they  may  be  proceeded  with  for  their  of- 
fence according  to  law.2 

1    Pub.  Sts.  cli.  205,  §  22. 
-  Ibid.,  ch.  206,  §  1. 


122  JUSTICES    OF   THE   PEACE. 

§  227.  If  a  justice  of  the  peace  having  notice 
of  any  such  riotous  or  tumultuous  and  unlawful 
assembly  in  the  city  or  town  in  which  he  lives, 
neglects  or  refuses  immediately  to  proceed  to  the 
place  of  such  assembly  or  as  near  thereto  as  he 
can  with  safety,  or  omits  or  neglects  to  exercise  the 
authority  with  which  he  is  invested  by  Pub.  Sts.  ch. 
206,  for  suppressing  such  assembly,  and  for  arrest- 
ing and  securing  the  offenders,  he  shall  be  punished 
by  fine  not  exceeding  three  hundred  dollars.1 

§  228.  If  any  persons  who  are  so  riotously  or 
unlawfully  assembled,  and  who  have  been  com- 
manded to  disperse,  as  before  provided,  refuse  or 
neglect  to  disperse  without  unnecessary  delay,  any 
two  justices  of  the  peace  may  require  the  aid  of  a 
sufficient  number  of  persons,  in  arms  or  otherwise, 
as  may  be  necessary,  and  shall  proceed,  in  such 
manner  as  in  their  judgment  is  expedient,  forth- 
with to  disperse  and  suppress  such  assembly,  and 
seize  and  secure  the  persons  composing  the  same, 
so  that  they  may  be  proceeded  with  according  to 
law.2 

$  229.  If  by  reason  of  the  efforts  made  by  any 
two  justices  of  the  peace  or  by  their  direction  to 
disperse  such  assembly,  or  to  seize  and  secure  the 
persons  composing  the  same,  who  have  refused  to 
disperse,  though  the  number  remaining  may  be 
less  than  twelve,  any  such  person  or  any  other 
person  then  present  is  killed  or  wounded,  the  jus- 

1    I'ul..  Sts.  oh.  206,  §  .3.  2  Ibid.,  §  4. 


GENERAL    POWERS    AND    DUTIES.  123 

tiers  of  the  peace,  and  all  persons  acting  by  their 
order  or  under  their  directions,  shall  be  held  guilt- 
less, and  fully  justified  in  law;  and  if  any  of  said 
justices  of  the  peace,  or  any  person  acting  under 
or  by  their  direction,  is  killed  or  wounded,  all 
persons  so  assembled,  and  all  other  persons  who, 
when  commanded  or  required,  refused  to  aid  and 
assist  said  justices  of  the  peace,  shall  be  held 
answerable  therefor.1 

NOT    TO    BUY    CERTAIN    DEMANDS   FOR   COLLECTION. 

§  230.  Justices  of  the  peace  shall  not  directly  or 
indirectly  buy  or  be  interested  in  buying,  or  directly 
or  indirectly  lend  or  advance,  or  agree  to  lend  or 
advance  any  money  or  other  goods,  or  give  or 
promise  any  valuable  consideration  whatever  to 
any  person,  as  an  inducement  to  place  or  in  con- 
sideration of  having  placed  in  the  hands  of  any 
person  any  bond,  note,  book-debt  or  right  of  action 
for  collection,  with  intent  to  make  themselves  any 
gain  from  the  fees  arising  from  such  collection  by 
a  suit  at  law  ;  and  a  justice  of  the  peace  who 
commits  any  of  the  above  described  offences,  shall 
for  each  offence  forfeit  not  less  than  twenty  nor 
more  than  live  hundred  dollars.2 

COMPLAINTS  UNDER  DOG  LAWS. 

§  231.  A  justice  of  the  peace  shall  take  the  oath 
of  a  person  that  he  has  been  assaulted  by  a  dog,  or 

1   Pub.  StS.  eh.  206,  §  6.  2  Ibid.,  ch.  100.  £§  0.  7. 


124  JUSTICES  OP  THE  PEACE. 

that  he  has  found  a  dog  strolling  out  of  the  enclo- 
sure or  immediate  care  of  its  owner  or  keeper, 
and  that  he  suspects  the  dog  to  be  dangerous  or 
mischievous,  if  given  within  forty-eight  hours  after 
such  assault  or  finding,  and  the  justice  shall  also 
give  to  such  person  a  certificate  of  such  oath 
signed  by  him.1 

Complaint  of  one  who  has  been  Assaulted  by  a  Mis- 
chievous Dog. 

To  S.  T.,  Esq.,  a  Justice  of  the  Peace  for  the  Com- 
monwealth of  Massachusetts. 

Complains  upon  oath  E.  B.  of  ,  that  within 

forty-eight  hours  last  past  he  has  been  suddenly  as- 
saulted, while  he  was  quietly  and  peaceably  walking  [or 
riding]  from  to  ,  in  the  county  of  S.,  by  a 

dog  belonging  to  [or  in  the  keeping  of]  C.  D.  of 
the  same  dog  then  and  there  being  out  of  the  enclosure 
[or  immediate  care]  of  the  said  C.  D.,  and  that  he  really 
suspects  that  the  said  dog  is  dangerous  and  mischievous. 

B.  ,  189   . 

(Signed)  E.  B. 

S.  |  ss.  ,  189   . 

The  above  named  E.  B.  personally  appeared  and 
made  oath  to  the  truth  of  the  above  complaint  by  him 
signed. 

Before  me,  S.  T., 

Justice  of  the  Peace. 

i  Pub.  Sts.  ch.  102,  §  !tr>. 


GENERAL   POWERS    AND    DUTIES.  125 

( 'omplaint  respecting  a  Dog  found  out  of  the  Enclosure 
of  its  Oicner. 

To  S.  T.,  Esq.,  a  Justice  of  the  Peace  for  the  Common- 
wealth of  Massachusetts. 
Complains  upon  oath  E.  B.  of  ,  that  within 

forty-eight  hours  last  past  he  found  a  dog,  which  he 
really  suspects  to  lie  dangerous  and  mischievous,  stroll- 
ing out  of  the  enclosure  of  ,  the  owner  [or  out  of 
the  immediate  care  of  ,  the  keeper]  of  said  dog, 
at               in 

B.  ,  189  . 

(Signed)  E.  B. 

S.  jss.  ,189   . 

The  above  named  E.  B.  personally  appeared  and 
made  oath  to  the  truth  of  the  above  complaint  by  him 
signed. 

Before  me,  S.  T., 

Justice  of  the  Peace. 

Certificate  to  be  given  to  one  who  has  been  Assaulted 
by  a  Mischievous  Dog. 

S.  jss.  ,  189  . 

I  hereby  certify,  that  on  this  day  of 

in  the  year  of  our  Lord  eighteen  hundred  and  ninety 
,  personally  came  before  me  the  subscriber,  a 
Justice  of  the  Peace  tor  the  Commonwealth  of  Massa- 
chusetts, E.  B.  of  ,  in  said  county,  and  made 
oath,  that  within  forty-eight  hours  last  past  he  has  been 


126  JUSTICES    OF    THE   PEACE. 

suddenly  assaulted,  while  he  he  was  quietly  and  peace- 
ably walking  [or  riding]  from  to  ,  at 
,  in  said  county,  by  a  dog  belonging  to  [or  in 
the  keeping  of]  C.  D.  of  ;  the  same  dog  being- 
then  and  there  out  of  the  enclosure  [or  immediate  care] 
of  the  said  C.  D.,  and  that  he  really  suspects  that  the 
said  dog  is  dangerous  and  mischievous. 

It  is  therefore  the  duty  of  the  said  C.  D.,  agreeably 
to  a  law  of  the  Commonwealth  in  such  cases  made  and 
provided,  forthwith  to  kill  or  confine  the  said  dog. 

S.  T., 
Justice  of  the  Peace. 

Certificate  resx>ecting  a  Bog  found  out  of  the  Enclosure 
of  its  Owner. 

S.  |  ss.  ,  189  . 

I  hereby  certify,  that  on  this  day  of  , 

in  the  year  of  our  Lord  eighteen  hundred  and  ninety 
,  personally  came  before  me  the  subscriber,  a 
Justice  of  the  Peace  for  the  Commonwealth  of  Massa- 
chusetts, E.  B.  of  ,  in  said  county,  and  made 
oath,  that  within  forty-eight  hours  last  past  he  found  a 
dog  which  he  really  suspects  to  be  dangerous  and  mis- 
chievous, strolling  out  of  the  enclosure  of  ,  the 
owner  [or  out  of  the  immediate  care  of  ,  the 
keeper]  of  said  dog,  at                 ,  in 

It  is  therefore  the  duty  of  the  said  C.  D.,  agreeably 
to  a  law  of  the  Commonwealth  in  such  cases  made  and 
provided,  forthwith  to  kill  or  confine  the  said  dog. 

S.  T., 

Justice  of  the  Peace. 


GENERAL    POWERS    AND    DUTIES.  127 

DETERMINATION    OF    AMOUNT    DUE    FOR    EQUITY 
OF   REDEMPTION. 

^  232.  When  lands  or  rights  are  taken  and  set 
off  or  sold  on  execution,  the  debtor  may  in  all 
cases  cause  the  amount  due  for  redemption  to  be 
ascertained  at  his  own  expense  by  three  justices 
of  the  peace  in  the  manner  following  :  One  of  the 
justices  shall  be  chosen  by  the  debtor,  one  by  the 
creditor,  and  the  third  by  the  two  first  chosen  ;  or 
if  the  creditor  neglects  to  choose  one,  the  justice 
chosen  by  the  debtor  shall  appoint  the  other  two. 
After  a  hearing  and  examination  of  the  case  before 
the  three  justices,  they  or  any  two  of  them  shall 
make  and  sign  a  certificate  of  the  sum  which  they 
adjudge  to  be  due  for  the  redemption  of  the  prem- 
ises, which  certificate  shall  be  final  and  conclusive 
between  the  parties.  The  debtor  may  then  make 
a  tender  of  the  sum  so  adjudged  to  be  due,  which 
shall  be  valid  and  effectual,  notwithstanding  he 
has  made  a  previous  tender  of  a  different  sum.1 

FORECLOSURES  OF  MORTGAGES. 

§  233.    A  certificate  of  two  competent  witnes 
to  prove  an  entry  without  a  judgment  for  breach 
of  a  condition   of  a  mortgage,  shall  be  made  and 
sworn  to  before  a  justice  of  the  peace.2 

1  Pub.  Ste.  ch.  17.',  §  33.  -  [bid.,  cb.  181,  §  2. 


128  JUSTICES  OF  THE  PEACE. 

§  234.  A  certificate  of  the  entry  of  a  mortgagee, 
for  the  purpose  of  foreclosure,  sworn  to  before 
himself  as  a  justice  of  the  peace,  is  invalid.  It 
is  as  contrary  to  elementary  principles  of  justice 
to  allow  a  justice  of  the  peace  to  administer  the 
requisite  oath  to  such  a  certificate  of  his  own 
entry  under  a  mortgage  to  himself,  as  to  permit 
him  to  take  in  his  official  capacity  a  deposition  in 
a  suit  to  which  he  is  a  party,  or  an  acknowledg- 
ment of  a  deed  to  himself,  or  a  recognizance  for  a 
debt  due  to  him  personally.1 

HABEAS    CORPUS. 

§  235.  Every  person  imprisoned  or  restrained  of 
his  liberty,  except  in  the  cases  mentioned  in  the 
following  section,  may  as  of  right  and  of  course 
prosecute  a  writ  of  habeas  corpus,  according  to  the 
provisions  of  chapter  185  of  the  Public  Statutes, 
to  obtain  relief  from  such  imprisonment  or  re- 
straint, if  it  proves  to  be  unlawful.2 

§  236.  The  following  persons  shall  not  be  en- 
titled as  of  right,  to  demand  and  prosecute  said 
writ :  — 

First,  Persons  committed  for  treason  or  felony, 
or  on  suspicion  thereof,  or  as  accessories  before 
the  fact  to  a  felony,  when  the  cause  is  plainly  and 
specially  expressed  in  the  warrant  of  commitment. 

1  Judd  v.  Tryon,  131  Mass.  345. 

2  Pub.  Sts.  ch.  185,  §  1. 


GENERAL    POWERS    AND    DUTIES.  129 

Second,  Persons  convicted  or  in  execution  upon 
legal  process,  civil  or  criminal. 

Third,  Persons  committed  on  mesne  process  in 
a  civil  action  on  which  they  were  liable  to  be  ar- 
rested and  imprisoned,  unless  when  excessive  and 
unreasonable  bail  is  required.1  The  writ  of  habeas 
corpus  may  be  granted  in  poor  debtor  proceedings.2 

§  237.  The  writ  may  be  issued  by  a  justice  of 
the  peace  if  there  is  no  judge  of  the  supreme  judi- 
cial court,  of  the  superior  court,  or  of  a  probate 
police,  district  or  municipal  court  who  is  known  to 
said  justice  of  the  peace  to  be  within  five  miles 
of  the  place  where  the  party  is  imprisoned  or 
restrained  ;  and  the  writ  may  be  issued  by  said 
justice  of  the  peace,  without  regard  to  the  county 
in  which  is  the  place  of  imprisonment.3 

§  238.  When  a  writ  of  habeas  corpus  is  issued  by 
a  justice  of  the  peace,  it  should  appear  on  the  face 
of  the  writ,  or  else  on  the  face  of  the  petition  when  it 
is  annexed  to  the  writ,  that  the  case  exists  in  which 
authority  is  given  to  a  justice  of  the  peace  to  issue 
the  writ.  That  is,  it  should  appear  that  no  judge  of 
the  supreme  or  superior  courts,  or  of  a  probate, 
police,  district  or  municipal  court  is  known  to  the 
justice  of  the  peace  to  be  within  live  miles  of  the 
place  where  the  party  is  imprisoned  or  restrained.4 

sj  239.  Application  for  the  writ  shall  be  made 
to  the  justice  of  the  peace  authorized  to  issue  the 

1   Pub.  StB.  eh.  185,  §  2.  -  StS.  1888,  ch.  419,  §  12. 

3  Tub.  Sts.  ch.  185,  §  3.  *  Com.  v.  Moore,  19  Pick.  339. 

9 


130  JUSTICES    OF   THE   PEACE. 

same  by  complaint  in  writing,  signed  by  the  party 
for  whose  relief  it  is  intended,  or  by  some  person 
in  his  behalf,  and  setting  forth  — 

First,  The  persons  by  whom,  and  the  place 
where  the  party  is  imprisoned  or  restrained,  nam- 
ing the  prisoner  and  the  person  detaining  him  if 
their  names  are  known,  and  describing  them  if 
their  names  are  not  known. 

Second,  The  cause  or  pretence  of  such  imprison- 
ment or  restraint,  according  to  the  knowledge  and 
belief  of  the  person  applying. 

Third,  if  the  imprisonment  or  restraint  is  by 
virtue  of  a  warrant  or  other  process,  a  copy  of 
such  warrant  or  process  shall  be  annexed,  unless 
it  is  made  to  appear  that  such  copy  has  been  de- 
manded and  refused,"  or  that  by  some  sufficient 
reason  a  demand  therefor  could  not  be  made. 
The  facts  set  forth  in  the  complaint  shall  be  veri- 
fied by  the  oath  of  the  person  making  the  applica- 
tion or  of  some  other  credible  witness.1 

§  240.  The  justice  of  the  peace  to  whom  the 
complaint  is  made  shall  without  delay  award  and 
issue  a  writ  of  habeas  corpus,  substantially  in  the 
form  heretofore  established  and  used  in  this  Com- 
monwealth, and  returnable  forthwith  at  such 
place  as  shall  be  designated  in  the  writ  before  the 
supreme  judicial  court,  or  before  some  justice 
thereof,  in  term  time  or  vacation,  and  whether 
the  court  is  in  session  or  not.2 

1   Pub.  Sts.  cli.  185,  §  4.  2  Ibid.,  §  5. 


GENERAL    POWERS    AND    DUTIES.  131 

§  241.  In  cases  of  imprisonment  or  restraint  by 
a  person  not  a  sheriff,  deputy  sheriff  or  jailer,  and 
it  seems  that  the  same  form  of  writ  may  be  used  in 
any  case,  the  writ  shall  be  in  the  following  form : 

COMMONWEALTH    OF   MASSACHUSETTS. 

i-         -,         To  the  Sheriffs  of  our  several  counties  and 
[seal] 

to  their  respective  deputies,  Greeting : 

We  command  you  that  the  body  of  ,  of  , 

by  ,  of  ,  imprisoned  and  restrained  of 

his  liberty,  as  it  is  said,  you  take  and  have  before  , 

a  justice  of  our  supreme  judicial  court  at  ,  imme- 

diately after  the  receipt  of  this  writ,  to  do  and  receive 
what  our  said  justice  shall  then  and  there  consider  con- 
cerning him  in  this  behalf;  and  summon  said 
then  and  there  to  appear  before  our  said  justice  to  show 
the  cause  of  the  taking  and  detaining  of  said  ; 

and  have  you  there  this  writ  with  your  doings  thereon. 

Witness  at  ,  this  day  of  ,  in 

the  year 

The  writ  shall  be  signed  by  the  justice  of  the 
peace  issuing  the  same,  and  it  may  be  served  in 
any  county  by  a  sheriff  or  deputy  sheriff  thereof, 
or  of  any  other  county.1 

§  242.  If  the  party  is  detained  for  a  cause  or  of- 
fence for  which  he  is  bailable,  he  shall  be  admitted 
to  bail  if  sufficient  bail  is  offered  ;  and  if  not,  he 
shall  be  remanded,  with  an  order  of  the  court  or 

1    Tub.  Sts.  eh.  185.  §§  6,  7. 


132  JUSTICES    OF   THE   PEACE. 

judge  expressing-  the  sum  in  which  he  shall  be  held 
to  bail,  and  the  court  at  which  he  shall  be  required 
to  appear  ;  and  any  justice  of  the  peace  may,  at  any 
time  before  the  sitting  of  said  court,  bail  the  party 
pursuant  to  such  order.1 

INSOLVENCY   PROOFS. 

§  243.  A  justice  of  the  peace  may  take  proofs 
in  insolvency.  The  creditor  in  person,  or  if  he  is 
unavoidably  prevented  from  being  present,  his 
agent,  must  make  an  oath  before  the  justice  of  the 
peace  in  substance  as  follows  :  — 

I,  ,  do  swear  that  ,  of  ,  by  [or 

against]  whom  proceedings  in  insolvency  have  been 
instituted,  at  and  before  the  date  of  such  proceedings 
was  and  still  is  justly  and  truly  indebted  to  me  in  the 
sum  of  ,  for  which  sum  or  any  part  thereof  I  have 

not,  nor  has  any  other  person  to  my  use,  to  my  knowl- 
edge or  belief,  received  any  securit}'  or  satisfaction 
whatever,  beyond  what  has  been  disposed  of  agreeably 
to  law.  And  I  do  further  swear  that  said  claim  was 
not  procured  by  me  for  the  purpose  of  influencing  the 
proceedings  in  this  case.  And  I  do  further  swear  that 
I  have  not  directly  or  indirectly  made  or  entered  into 
any  bargain,  arrangement  or  agreement,  express  or 
implied,  to  sell,  transfer  or  dispose  of  my  claim,  or  any 
part  of  my  claim,  against  said  debtor,  nor  have  directly 
or  indirectly  received  or  taken,  or  made  or  entered  into 

1  Pub.  StS.  ch.  185,  §  22. 


GENERAL    POWERS   AND    DUTIES.  133 

an\-  bargain,  arrangement  or  agreement,  express  or 
implied,  to  take  or  receive,  directly  or  indirectly,  any 
money,  property  or  consideration  whatsoever  to  myself, 
or  to  an}T  person  or  persons  to  my  use  or  benefit,  under 
or  with  any  understanding  or  agreement,  express  or 
implied,  whereby  my  vote  for  assignee  or  my  assent  to 
the  debtor's  discharge  is  or  shall  be  in  any  way  affected. 
influenced  or  controlled,  or  whereby  the  proceedings 
in  this  case  are  or  shall  be  affected,  influenced  or 
controlled.1 

INSPECTION    OF   DRUGGISTS'    BOOKS    AS   TO    LIQUOR 
SALES. 

§  244.  Justices  of  the  peace  may  inspect  drug- 
gists' books,  certificates  and  prescriptions  of  sales 
of  intoxicating  liquor.2 

LIMITED    PARTNERSHIP   ACKNOWLEDGMENTS. 

§  i?45.  A  justice  of  the  peace  shall  receive  ac- 
knowledgments of  limited  partnership  certificates. 
The  certificate  must  be  acknowledged  by  all  the 
partners  before  the  justice.3 

MARRIAGES. 

§  246.  A  marriage  may  be  solemnized  by  a 
justice  of  the  peace  who  resides  in  the  Common- 
wealth and  continues  to  perform  the  functions  of 

1  Pub.  Sts.  eh.  157,  §§  29-31.  -  Sts.  1887,  ch.  431,  §  4. 

3  Pub.  Sts.  ch.  75,  §  5. 


134  JUSTICES  OF  THE  PEACE. 

his  office ;  but  every  marriage  shall  be  solemnized 
in  the  city  or  town  in  which  the  person  solemniz- 
ing it  resides,  or  in  which  one  or  both  of  the  per- 
sons to  be  married  reside.1  Any  form  may  be 
used  by  a  justice  of  the  peace  in  solemnizing  a 
marriage. 

§  247.  A  justice  of  the  peace  shall  receive  a 
certificate  of  intention  of  marriage  from  the  parties 
wishing  to  be  married.  This  certificate  is  given  to 
the  parties  by  the  clerk  or  registrar  of  the  city  or 
town  where  they  respectively  dwell,  or  in  which 
they  propose  to  have  the  marriage  solemnized.2 

§  248.  If  the  parties  themselves  make  mutual 
agreements  in  the  presence  of  a  justice  of  the 
peace,  with  his  assent,  he  undertaking  to  act  in 
his  official  capacity,  it  is  a  legal  marriage.3 

§  249.  Every  justice  of  the  peace  shall  make  a 
record  of  each  marriage  solemnized  before  him, 
and  of  all  facts  relating  to  the  marriage  which  are 
required  by  law  to  be  recorded.  He  shall  also 
between  the  first  and  tenth  days  of  each  month 
return  a  copy  of  all  such  records  for  the  month 
next  preceding  to  the  clerk  or  registrar  of  the 
city  or  town  in  which  the  marriage  was  solemn- 
ized, and  shall,  when  one  or  both  of  the  parties  to 
the  marriage  resided  in  a  city  or  town  other  than 
that  in  which  the  marriage  was  solemnized,  return 
a  copy  of  the  record  of  such  marriage  to  the  clerk 

i  Pub.  Sts.  ch.  145,  §  22.  2  Ibid.,  §§  1G,  17. 

3  Milford  v.  Worcester,  7  Mass.  48. 


GENERAL    POWERS    AND    DUTIES.  135 

or  registrar  of  the  city  or  town  in  which  either 
party  resided,  and  to  the  clerks  or  registrars  of 
both  cities  or  towns  when  the  parties  resided  in 
different  places.  Every  justice  of  the  peace  neg- 
lecting to  make  these  returns  shall  forfeit  for  each 
neglect  not  less  than  twenty  nor  more  than  one 
hundred  dollars.1 

§  250.  A  justice  of  the  peace  who  joins  persons 
in  marriage  contrary  to  the  provisions  above  stated, 
knowing  that  the  marriage  is  not  duly  authorized, 
shall  forfeit  not  less  than  fifty  nor  more  than  one 
hundred  dollars.2 

$  251.  When  a  marriage  appears  to  have  been 
celebrated  by  a  competent  officer,  as  a  justice  of 
the  peace,  the  marriage  is  deemed  lawful,  although 
it  is  not  duly  authorized  by  law,  and  although  the 
justice  of  the  peace  may  have  incurred  a  penalty 
for  his  irregularity.3 

§  252.  For  lawfully  certifying  and  solemnizing 
a  marriage,  a  justice  of  the  peace  shall  be  entitled 
to  receive  one  dollar  and  twenty-five  cents.4 

NOMINATIONS    OF    GUARDIANS. 

£  258.  The  nomination  of  a  guardian  by  a  minor 
above  the  age  of  fourteen  years  may  be  made  be- 
fore a  justice  of  the  peace,  who  shall  certify  the 
fact  to  the  probate  court."1 

1  Pub.  Sts.  ch.  145,  §  24.  s  Ibid.,  §  25. 

Milford  v.  Worcester,  7  Mass.  56. 
4  Pub.  Sts.  ch.  199,  §  17.  5  Ibid.,  eh.  139,  §  3. 


136  JUSTICES    OF   THE   PEACE. 

REMOVAL    OP   GATES,  ETC.,  ON  TOWN   AND    PRIVATE 
WAYS. 

§  254.  If  fences,  gates,  rails  or  bars  are  upon 
or  across  a  town  way  or  private  way,  they  may  be 
removed  by  the  order  of  a  justice  of  the  peace, 
unless  they  are  there  placed  for  the  purpose  of 
preventing  the  spreading  of  a  disease  dangerous  to 
the  public  health,  or  unless  they  are  erected  or 
continued  by  license  of  the  town,  or  of  the  person 
for  whose  use  such  private  way  was  laid  out.1 

§  255.  The  power  conferred  upon  justices  of 
the  peace  to  order  fences,  gates,  rails  or  bars  across 
town  ways  or  private  ways  to  be  removed,  is  no 
more  a  judicial  power  than  if  it  had  been  vested 
in  the  selectmen  or  in  the  surveyors  of  highways, 
or  than  is  the  similar  power  which  any  citizen  has, 
to  remove  like  obstructions  in  a  county  highway. 
Thus  not  being  a  judicial  power,  an  order  of  a 
justice  of  the  peace  for  the  removal  of  such  ob- 
struction is  not  in  the  nature  of  a  judicial  warrant, 
and  the  sheriff  or  his  deputy  is  not  required  in  his 
official  capacity  to  serve  it 2 

WITNESSES. 

§  256.  Every  justice  of  the  peace  may  issue 
summonses  for  witnesses  in  all  cases  pending 
before  courts,  magistrates,  auditors,  referees,  arbi- 

1   Pub.  Sts.  ch.  54,  §  5.  2  Davis  v.  Smith,  130  Mass.  1 13. 


GENERAL   POWERS   AND    DUTIES.  137 

trators  and  other  persons  authorized  to  examine 
witnesses ;  and  the  summons  shall  be  in  the  form 
heretofore  adopted  and  commonly  used,  but  may 
be  altered  from  time  to  time  like  other  writs: 
provided  however,  that  justices  of  the  peace  shall 
not  issue  summonses  for  witnesses  in  criminal 
cases  unless  requested  so  to  do  by  the  attorney- 
general  or  other  person  acting  in  the  case  in  behalf 
of  the  state,  or  by  the  party  prosecuted ;  and  in  the 
latter  case,  it  shall  be  expressed  in  the  summons 
that  it  is  granted  at  the  request  of  the  party  prose- 
cuted ;  and  the  witness  shall  not  be  required  to 
attend  unless  upon  payment  or  tender  of  his  legal 
fees.1 

Form  of  Subpoena  with  duces  tecum. 

COMMONWEALTH    OF   MASSACHUSETTS. 


To  A.  B.  of  T.,  in  the  county  of  E.,  and  within  said 
Commonwealth,  Greeting . 

You  are  hereby  required,  in  the  name  of  the  Com- 
monwealth of  Massachusetts,  to  appear  before  the 
court  ,  holden  at  ,  within  and  for  the 

county  of  ,  on  the  day  of  ,  at 

o'clock  in  the  noon,  and  from  day  to  day 

thereafter,  until  the  action  hereinafter  named  is  heard 
by  said  court,  to  give  evidence  of  what  you  know  relat- 

1   Sts.  1885,  eh.  141.  §  1. 


138  JUSTICES  OF  THE  PEACE. 

ing  to  an  action  of  then  and  there  to  be  heard 

and  tried  between  C.  D.  of  M.,  in  the  county  of  S.  and 
within  said  Commonwealth,  plaintiff,  and  E.  F.  of  said 
M.,  defendant  [if  a  simple  subpoena  without  the  duces 
tecum  is  desired,  the  following  may  be  omitted] ;  [and 
you  are  further  required  to  bring  with  you  [here  state 
what,  if  an}-,  books,  papers,  etc.,  must  be  brought].] 

Hereof  fail  not,  as  you  will  answer  your  default  under 
the  pains  and  penalties  in  the  law  in  that  behalf  made 
and  provided. 

Dated  at  B.  the  day  of  ,  a.  d.  189    . 

S.  P., 

Justice  of  the  Peace. 

§  257.  The  fees  of  justices  of  the  peace  for  a 
subpoena  for  one  or  more  witnesses  shall  be  ten 
cents.1 

i  Pub.  Sts.  ch.  199,  §  1. 


INDEX. 


INDEX. 

(the  figures  refer  to  the  sections  except  when- 
otherwise  STATED.) 


Section 

ACCEPTANCE, 

time  for ■     .     .     .  54 

method  of 55 

may  be  oral  in  certain  cases 55 

who  may  give  an 56 

may  be  by  one  partner  of  a  bill  drawn  on  a  firm  56 

ACKNOWLEDGMENTS   OF    DEEDS, 

notaries  may  take 102 

need  not  affix  their  seals  to 102 

may  take  of  property  conveyed  in  certain 

other  states 103 

form  of pp.  44,  84 

justices  of  the  peace  may  take     ....       177-179 
when  grantor  refuses  to  acknowledge   ....      180 
forms  of  application  to  a  justice,  summons  there- 
on, and  certiticate  to  be  annexed  when  grantor 
refuses  to  acknowledge       .     .     •     •  PP-  85,  86,  87 
justices  may  take,  of  property  conveyed  in  certain 

other  states *81 

of  shares  of  stock  before  justices 182 

fees  of  justice  for  receiving l83 


142  INDEX. 

Section 

AFFIDAVITS, 

notaries  may  administer 104 

of  notaries  taken  outside  the  Commonwealth  to 

be  effectual  here 104 

(See  Oaths.) 
AGE   AND   SCHOOLING    CERTIFICATES, 

justices  may  administer  oath  in        205 

form  of 205 

APPRAISERS, 

justices  may  appoint,  of  estates  of  deceased  persons  214 

form  of  warrant 214 

fee  for  granting  warrant 215 

AQUEDUCT    CORPORATIONS, 

justices  may  call  meetings  of  proprietors  of  .     .     163 

ARBITRATION, 

controversies  may  be  submitted  to,  before  jus- 
tices         216-218 

form  of  agreement  to  submit  to        216 

certificate  of  justice  to  be  annexed  to  agreement 
to  submit  to ;  form  of  certificate        .     .     .     .     216 

fees  of  justices  in  reference  to 217 

submission  to,  by  a  partnership  or  partners   .     .     218 

ARBITRATORS, 

justices  may  be 216 

reasonable  compensation  to  be  awarded  to     .     .     217 

ARRESTS, 

justices  may  order,  for  certain  offences      .     .  222-224 

HAIL, 

iustices  may  admit  persons  arrested  to,  in  certain 

190 
cases ±OKJ 


INDEX.  148 

Section 
BAIL  —  continued. 

shall  he  certified  upou  the  warrant        .     .     .     .      191 
justices  may  issue,  in  habeas  corpus  suits  .     .     .     242 

BANK   OFFICERS, 

justices  shall  receive  oaths  of,  regarding  contents 
of  safety  deposit  vaults 207 

BILLS   OF   EXCHANGE, 

protest  of  foreign,  must  be  made  to  prove  dishonor  24 
inland,  recognized  as  an  official  act     .     .     .       27 

must  be  protested  for  non-acceptance  as  well  as 

for  non-payment 25    26 

makers  and  indorsers  of,  entitled  to  notice  of  dis- 
honor        88 

rates  of  damages  on  protested 99-101 

form  of  protest  of p.  38 

BOARDS   OF    HEALTH, 

two  justices  may  issue  warrants  for  entry  by      .     192 

form  for  warrants  for  entry  by p.  95 

BRIDGES. 

(See  Private  Ways  and  Bridges.) 

CERTIFICATES, 

to  be  annexed  to  depositions  by  justices  of  peace     142 

what  to  contain 142-145 

how  "  annexed  "  to  depositions 14(3 

form  of p.  65 

justice  may  alter,  before  transmitted  by  him  .     .     148 

CHECK, 

form  of  protest  of p.  38 

COLLECTORS   OF   TAXES, 

justices  may  receive  affidavits  of.  in  certain  cases    20G 


144  INDEX. 


Section 


COMMON    LANDS, 

justices  may  call  meetings  of  proprietors  of   .     .      176 

COMPLAINTS, 

certain  justices  may  receive,  in  criminal  cases     .      185 
shall  be  reduced  to  writing  by  justices       .     .     .     188 

CORPORATIONS, 

justices  may  call  meetings  of,  in  certain  event     .     160 

DAMAGES, 

rates  of,  on  protested  bills  of  exchange      .     .    99-101 

DEMAND. 

(See  Presentment  and  Demand.) 

DEMANDS   FOR   COLLECTION, 

justices  shall  not  buy  certain 230 

DEPONENT, 

how  sworn, and  examined 137,  138 

DEPOSITIONS, 

method  of  taking 126-148 

when  taken 126 

subject  to  certain  contingencies 127 

notice  to  adverse  party  of  taking     .     .    128,  130-136 
certain  persons  not  disqualified  from  taking  .      .     129 

by  whom  to  be  written 139,  140 

certain  documents  annexed   to,  need  not  be  in 

same  handwriting 141 

certificate  to  be  annexed  to 142-146 

to  whom  to  be  transmitted  when  taken      .     .     .     1 47 

summoning  of  witnesses  for 149-151 

to  perpetuate  testimony 152-157 

by  parties        158 

fees  of  justices  for  taking 159 


INDEX.  145 

Section 

DEPOSITIONS  —  continued. 

to  perpetuate   testimony,  form   of  certificate  of 

justice  to  be  annexed  to p.  7] 

DILIGENCE, 

reasonable,  must  be  used  in  giving  notices  of  dis- 
honor      92^  93 

defined        99 

DOGS, 

justices    shall    take  complaints   concerning,  and 

shall  issue  certificates  to  persons  complaining     231 

form  of  complaint  of  one  assaulted  by        .     .      p.  124 

respecting,  found  at  large     ....      p.  125 

certificate  given  to  one  assaulted  by        .      p.  125 

respecting,  found  at  large      ....      p.  126 

DRUGGISTS'    BOOKS, 

justices  may  inspect,  as  to  liquor  sales       .     .     .     244 

EQUITY   OF    REDEMPTION, 

determination  of  amount  due  for,  may  be  ascer- 
tained by  three  justices 232 

FEES, 

of  notaries  for  protesting  paper 97 

to  be  paid  by  notaries  and  justices  before  deliv- 
ery of  commissions     13    116 

159 
183 
202 
213 
215 
217 


of  justices  for  taking  depositions       .     . 
receiving  acknowledgments  of  deeds 
issuing  warrants  in  certain  cases    . 

administering  oaths 

granting  warrants  of  appraisement 
references  to  arbitration  .  .  . 
hearing  application  for  certificate  to  ar 

on  mesne  process 221 

10 


est 


146 


INDEX. 


Section 

FEES  —  continued. 

of  justices  for  solemnizing  marriages     ....     252 

subpoenas 257 

FIRE    DISTRICTS, 

justices  may  notify  meetings  for  establishment 

of,  in  certain  cases 164 

FORECLOSURES, 

notaries  may  take  affidavits  of  entry     .     .     .     .  105 

certificates  of  entry  to  be  sworn  to  before  justices  233 

justice  must  be  other  than  the  mortgagee       .     .  234 

FORMS, 

application  for  appointment  to  office  of  notary 
public p.  5 

oath  to  be  taken  by  notaries 

notice  of  dishonor     .     . 

protest  of  bill  or  check 
promissory  notes    . 

acknowledgment  of  deed    . 

creditor's  oath      .... 

application  for  appointment  to  office  of  justice  of 
peace p.  53 

notice  to  adverse  party  of  taking  deposition        .   p.  61 

certificate  of  justice  to  be  annexed  to  deposition    p.  65 

deposition  summons p.  68 

certificate  to  be  annexed  to  deposition  to  perpet- 
uate testimony p 

application    for  town   meeting  when   selectmen 
have  refused  to  call  one p 

warrant  for  town  meeting  issued  by  justice   .     .   p. 

application   to  justice  when   grantor  refuses  to 
acknowledge  deed p.  85 

summons   by  justice   when    grantor    refuses    to 

acknowledge  deed p.  86 


.  p.  7 
.  p.  27 
.  p.  38 
p.  40 
.  pp.  44,  84 
.  pp.  47,  132 


71 

79 
80 


INDEX.  147 

FORMS  —  continued. 

certificate  to  be  annexed  by  justice  when  grantor 

refuses  to  acknowledge  deed        p.  87 

warrant  for  entry  by  board  of  health  .  .  .  .  p.  95 
warrant  for  entry  of  premises  of  gas  consumer  p.  96 
complaint  to  search  for  intoxicating  liquor  .  p.  98 
warrant  to  search  for  liquors  unlawfully  kept  p.  100 
warrants    for    ascertaining    damage     done     by 

beasts pp.  103,  104 

appraisers'  returns,  on  warrants  for  ascertaining 

damage  done  by  beasts        ....     pp.  104,  105 
warrant  to  secure  infected  articles   .     .     .     .      p.  106 
warrant  to  appraise  lost  goods  or  stray  beasts     p.  108 
warrant  for  removal  of  persons  sick  with  conta- 
gious diseases p.  1 09 

age  and  schooling  certificate,  law  of  1888      .      p.  Ill 

appointment  of  appraisers p.  115 

agreement  to  submit  to  arbitration  .     .     .     .      p.  116 
certificate  of  justice  to  be  annexed  to  agreement 

to  submit  to  arbitration p.  117 

complaint  of  one  assaulted  by  a  dog      ...      p.  124 
respecting  dogs  found  at  large       ...      p.  125 
certificate  to  be  given  to  one  who  has  been  as- 
saulted by  a  dog p.  125 

certificate  respecting  a  dog  found  at  large      .      p.  1 26 

writ  of  habeas  corpus p.  131 

subpoena p.  137 

subpoena  duces  tecum p.  138 

GAS    CONSUMER, 

two  justices  may  issue  warrants  to  enter  premises 

of 193 

form  of  the  warrant p.  96 


148  INDEX. 

•  Section 

GENERAL    FIELDS, 

justices  may  call  meetings  of  proprietors  of    .     .     165 

GRACE, 

when  days  of,  are  allowed 35,  36 

GUARDIANS, 

nominations  of,  may  be  made  before  justices       .     253 

HABEAS   CORPUS, 

who  may  prosecute  writs  of 235,  236 

writs    of,    may   be    issued   by   justices   of   the 

peace 237,240 

authority  of  justice  to  appear  on  writ  ....  238 
contents  of  applications  for  writs  of  ....  239 
writs  of,  to  be  signed  by  justice  issuing  them      .     241 

form  of  writ  of 241 

issuing  of  bail  by  justices 242 

IMPOUNDED   BEASTS, 

justices  may  issue  warrants  to  determine  damage 

done  by 195,  196 

form  of  warrants  for  ascertaining  damage  done 

by pp.  103,  104 

1NDORSERS, 

of  bills  and  notes  entitled  to  notices  of  dishonor  88 
successive,  how  notified 91 

INFECTED   ARTICLES, 

justices  may  issue  warrants  to  secure  .  .  197,  198 
form  of  warrant  issued  to  secure      .     .     .     .      p.  106 

INSOLVENCY, 

notary  public  may  take  proofs  in 107 

form  of  creditor's  oath  in  proofs  in  .  .107,  243 
proofs  in,  may  be  taken  by  justices       ....     243 


INDEX.  149 

Section 

INTOXICATING   LIQUOR, 

justices  may  issue  warrants  to  search  for  .     .     .     194 

form  of  complaint  to  search  for p.  98 

warrant  to  search  for p.  100 

JUSTICES    OF    THE    PEACE, 

origin  of 109-111 

powers  of,  at  present  very  limited   .      .     .       110,  111 

to  be  appointed  by  the  governor 112 

requisites  for  appointment 113 

women  cannot  be  appointed 114 

women  may  have  certain  powers  of  .     .     .      114 

method  of  applying  for  appointment  to  the  office 

of 115 

form  for  application  for  appointment    .     .     .     .  p.  53 

fees  of,  for  commission 116 

shall  be  notified  of  appointment  within  a  certain 

time 117 

must  take  oath  of  office  within  certain  time        .     117 

form  of  oath  of 118 

shall  have  right  to  act  throughout  the  Common- 
wealth     119 

expiration  of  commissions  of 1 20 

commissions  of,  may  be  renewed 120 

notification   of  expiration  of  commission   to   be 

sent 121 

penalty  for  acting  after  expiration  of  commission     122 

may  hold  other  offices 123 

shall  be  exempt  from  watch  and  ward  duties       .      1  23 
in  certain  cases  designated  to  act  as   trial    jus- 
tices   124 

penalty  for  falsely  assuming  to  be 125 

duties  of,  as  regards  depositions        .     .     .        126-159 
calling  of  meetings 160-176 


150  INDEX. 

Section 

JUSTICES  OF  THE  PEACE  —continued. 

duties  of,  acknowledgment  of  deeds       .     .  177-183 

issuing  of  warrauts 184-202 

oaths  and  affidavits 203-213 

in  general 214-257 

LIMITED    PARTNERSHIPS, 

justices  may  take  acknowledgments  of  245 

LOST    GOODS, 

justices  may  issue  warrants  to  determine  value  of     199 
in  certain  cases  justices  shall  determine  amount 

of  charges  on 200 

form  of  warrant  to  appraise p.  108 

MARRIAGES, 

justices  may  solemnize 246 

form  of 24(5 

justices  to  receive  certificates  of  intentions  of      .  247 

mutual  agreements  before  justices  are  legal   .     .  248 

records  of,  to  be  made  by  justices 21!) 

penalty  for  performing,  not  duly  authorized        .  250 

may  be  legal  although  not  duly  authorized    .     .  251 

fees  of  justices  for  solemnizing 252 

MEETING-HOUSES, 

justices  may  call  meetings  of  proprietors  of    .     .      166 

MEETINGS, 

calling  of,  by  justices, 160-176 

MESNE    PROCESS, 

justices  may  receive  affidavits  of  plaintiffs  seeking 

to  arrest  persons  on        219,  220 

contents  of  affidavits 219,220 

fees  of  justices 221 


INDEX.  151 

Section 

METHODIST    EPISCOPAL   CHURCHES, 

meetings  of  trustees  of,  may  be  called  by  justices    171 

MODERATORS, 

justices  shall  perform  the   duties  of,  in  certain 
cases 173 

NOTARIES   PUBLIC, 

origin  of  the  office  of 1_7 

shall  have  jurisdiction  throughout  Commonwealth         8 

shall  hold  office  for  seven  years 8 

women  cannot  be 9 

qualifications  of,  for  appointment  ....  9 

how  appointed 8,  10    11 

must  take  the  oath  of  office  within  a  certain  time 

after  appointment 12 

form  of  oath  of 14 

fee  for  commission 13 

notifications  of  expiration  of  commission  to  be 

sent 15 

penalty  for  acting  as,  after  expiration  of  commis- 
sion            16 

on  death,  etc.,  their  records  to  be  deposited,  etc.        17 
penalty  for  neglect  to  deposit  records         .     .      18,  19 

seals  of 21,  22 

protest  of  commercial  paper  by        ....    23-101 

statutory  powers  of 102-108 

must  keep  a  record  of  protests 94 

fees  of,  for  protesting  paper 97 

liability  of,  for  failure  to  make  protests      ...       98 
justices  shall  receive  oaths  of,  regarding  contents 

of  safety  deposit  vaults 207 

form  of  application  for  appointment  to  office  of       p.  5 


152  INDEX. 

Section 

NOTICE   OF   DEPOSITION, 

to  be  given  to  adverse  party 128 

on  whom  to  be  served        130,  131 

how  served 132,  133 

when  served        132,  134,  135 

form  of p-  61 

may  be  given  verbally        136 

omitted  in  certain  cases 136 

NOTICE  OF  DISHONOR, 

drawee  or  indorsee  not  liable  without  ....  58 
notary  may  give,  as  agent  of  the  holder  ...  59 
must  be  given,  although  drawer  is  insolvent,  and 

has  absconded 60 

not  necessary  where  drawer  had  no  effects  in 

hands  of  drawee 61 

drawer  not  entitled  to,  where  bill  was  payable  to 

and  indorsed  by  him 61 

is  necessary  where  drawee  had  funds  at  time  bill 

was  drawn 62 

when    funds    afterward   come    into    hands    of 

drawee 63 

accommodation  indorser  entitled  to       ....       64 

certain  requisites  of 65-68,  70 

if  erroneous,  may  be  sufficient  if  indorser  is  not 

misled 69 

form  of p.  27 

when  to  be  given  of  dishonor  of  a  demand  note        71 

must  be  given  seasonably 72-74 

in  certain  cases  may  be  given  without  present- 
ment and  demand 73 

must  be  so  given  as  to  reach  indorser  promptly  75 
may  be  deposited  in  post-office  properly  directed  76-78, 

80-84 


INDEX.  153 

Section 

NOTICE    OF    DISHONOR  —  continued. 

may  be  left  at  residence  or  place  of  business  of 

indorser 77,  79,  85 

must  be  sent  to  drawers  and  indorsers  of  bills, 

and  indorsers  of  notes 88,  89 

sent  to  partnership  is  notice  to  all  the  members         90 

in  case  of  successive  indorsers .       91 

NOTING, 

must  be  done  on  the  very  day  of  dishonor     .     .        57 
may  be  upon  the  instrument  or  upon  the  records 

of  the  notary 57 

how  performed 57 

OATHS, 

of  office  to  be  taken  by  notaries  public  and  jus- 
tices   12,  117 

forms  of,  to  be  taken  by  notaries  and  justices     14,  118 

justices  may  administer 203,  205-213 

method  of  administering 204 

fees  of  justices  for  administering 213 

PEDLERS, 

justices  may  inspect  licenses  of 212 

PEWS, 

justices  shall  receive  affidavits  of  notices  of  sales  of    208 

PRESENTMENT   AND    DEMAND, 

when  necessary 30   31 

notaries  public  may  make 32  33 

cannot  act  by  deputy  in  making   ....       ;;  | 

at  what  time  to  be  made 35-47 

must  be  made  on  last  day  of  grace 37 

must  be  made  within  a   reasonable   time  in  case 
of  sight  drafts 38 


154  INDEX- 

SECTION 

PRESENTMENT   AND    DEMAND  —  continued. 
method  of  computing  time  for,  in  promissory  notes      39 
insufficient  if  made  before  or  after  maturity  .      40,  41 
in  case  of  bills  payable  at  a  fixed  period  after  date       42 
when  to  be  made  on  paper  due  on  Sundays  or 

holidays 43 

promissory  notes  payable  on  demand     44,  45,  47 
certain  orders  to  be  payable  on  demand     ...        46 

how  to  be  made 48 

the  person  making,  should  have  the  instrument 

with  him 49 

where  to  be  made  when  maker  has  left  the  state  50-52 

of  a  note  with  several  makers 53 

not  necessary  in  certain  cases 73 

not  sufficient  if  made  at  former  place  of  business 

of  maker 86 

PRIVATE  WAYS  AND    BRIDGES, 

justices  may  call  meetings  of  proprietors  of  .     .     167 

PROMISSORY   NOTES, 

protest  of,  recognized  as  an  official  act  ...  27 
indorsers  of,  entitled  to  notice  of  dishonor  .  88,  89 
form  of  protest  of p.  40 

PROTEST, 

definition  of 23 

object  and  purpose  of 23 

is  a  necessity  in  the  case  of  foreign  bills    ...        24 
must  be  for  non-acceptance  as  well  as  for  non- 
payment       25,  26 

of  jnland  bills  and  promissory  notes      ....       27 

method  of 28,  29-97 

liability  of  notaries  who  fail  to  make  ....  98 
"extending"  the 95 


INDEX.  155 

Section 

PROTEST  —  continued. 

rime  for  making  the  full  and  complete  .  .  .  95 
must  be  certified  by  the  notary  under  seal  .  .  95 
shall  be  prima  facie  evidence  of  facts  stated  therein    95 

form  of,  of  bill  or  check p.  ;js 

form  of,  of  promissory  note p.  40 

only  one  formal,  necessary  where  protests  for 

non-acceptance  and  non-payment  both    ...        9G 
fees  of  notaries  for  making 97 

QUAKERS, 

may  affirm  iustead  of  swear  when  appointed  to 

office  of  notary  public  or  justice  of  the  peace   14,  118 

RAILROAD    POLICE, 

shall  be  sworn  before  justices 211 

RECORDS. 

of  notaries  public  to  be  deposited  with  clerk  of 

court  on  expiration  of  appointment  ....  17 

penalty  for  neglect  to  deposit 18,19 

destroying 20 

of  protests,  notaries  public  must  keep  ....  94 

books  for,  how  procured 94 

of  marriages  solemnized,  justices  shall  keep  .  249 
copies  of,  of  marriages  to  be  sent  to  town  clerks 

or  registrars 249 

REGISTERS    IX    BANKRUPTCY, 

justices  of  the  peace  may  be 123 

RELIGIOUS    SOCIETIES, 

justices  may  call  meetings  of,  in  certain  manner  1G8-170 

formation  of,  by  justices 17o 

justices  may  administer  oaths  to  officers  of    .     .     2U(,> 


156  INDEX. 

Section 

RESIDENCE, 

what  constitutes,  in  law  of  negotiable  instruments       87 

SAFETY  DEPOSIT  VAULTS, 

notary  public  shall  be  present  at  opening  of,  for 

non-payment  of  rent 106 

duties  of  notaries  at  opening  of 106 

SAVINGS   BANK   AFFIDAVITS, 

notaries  may  take 108 

contents  of 108 

SEALS, 

notaries  public  must  have 21 

form  of 21 

judicial  notice  taken  of  seals  of  notaries    ...  22 
of  notaries  need  not  be  authenticated  in  case  of 

protest  of  commercial  paper 22 

SHARES   OF    STOCK, 

justices  may  receive  acknowledgments  of  deeds  of    182 

SICK, 

two  justices  may  issue  warrants  for  removal  of  .     201 
form  of  warrant  for  removal  of p.  109 

SOCIAL    LIBRARY    CORPORATIONS, 

meetings  of  proprietors  of,  may  be  called  by  jus- 
tices   172 

SUBPOENA, 

justices  may  issue 25fi 

form  for p.  137 

fees  of  justices  for  issuing 257 

TOWN   AND    PRIVATE   WAYS, 

obstructions  on,  may  be  removed  by  order  of  jus- 
tices        254,  255 


INDEX.  157 

Section 

TOWN   MEETINGS, 

justices  shall  call,  in  certain  event 173 

form  of  application  for,  when  selectmen  have  re- 
fused to  call p.  79 

warrant  for,  by  justice  of  the  peace   .     .        p.  80 

TRIAL   JUSTICES, 

justices  of  the  peace  to  be  appointed  in  certain 

cases 124 

UNLAWFUL   ASSEMBLIES, 

justices  may  suppress 226-229 

WARRANTS, 

In  criminal  cases. 
certain    justices   of    the   peace    authorized     to 

issue 184,  186,  189 

fees  of  justices  for  issuing       184 

must  not  be  directed  to  a  private  person    .     .     .      187 

manner  of  issuing 188 

In  other  cases. 
justices  may  issue,  to  call  meetings  of  certain  cor- 
porations             160-176 

form  of,  for  calling  town  meetings  by  justices      .  p.  80 
two  justices   may   issue,  for  entry   by  board  of 

health * 192 

form  of  warrant  for  entry  by  board  of  health     .  p.  95 
two  justices  may  issue,  to  enter  premises  of  gas 

consumer 193 

form   of  warrant   to  enter  premises  of  gas  con- 
sumer      p.  96 

justices  may  issue  warrants  to  search  for  intoxi- 
cating liquor 194 

form  of,  to  search  for  intoxicating  liquor  .     .      p.  100 


158  INDEX. 

Section 
WARRANTS  —  continued. 

justices  may  issue,  to  determine  damage  done  by 

beasts 195,  196 

forms     of,     to     determine     damage     done     by 

beasts pp.  103,  104 

justices  may  issue,  to  secure  infected  articles   197,  198 
form  of,  issued  to  secure  infected  articles  .     .      p.  10G 

.  199 
p.  108 
.  201 
p.  109 
.  202 


justices  may  issue,  to  appraise  lost  goods  . 

form  of,  for  appraisal  of  lost  goods 

two  justices  may  issue,  for  removal  of  sick 

form  of,  for  removal  of  sick 

fees  of  justices  for  issuing        

WATCH    AND   WARD, 

justices  of  the  peace  are  exempt  from  the  duties  of     123 

WATCH    DISTRICTS, 

justices  may  notify   meetings  of  inhabitants  of 

towns  for  the  purpose  of  establishing     .       174,  175 

WHARVES, 

justices  may  call  meetings  of  proprietors  of   .      .     176 

WITNESSES, 

who  may  give  depositions 126 

may  be  summoned  for  depositions    .      .     .        149-151 

form  of  deposition  summons  for        p.  68 

summons  for,  may  be  issued  by  justices     .     .     .     256 

form  of  subpoena  for p.  137 

fees  of  justices  for  issuing  subpoenas  for     .     .     .     257 

WOMEN, 

cannot  be  notaries  or  justices  of  the  peace      .      9,  114 
shall  have  certain  powers  of  justices  of  the  peace    114 


T  11  E 

STUDENTS'    SERIES. 


ELEMENTARY    LAW    TREATISES 

BY    ABLE    WRITERS, 

including  the  most  important  topics  of  law. 

The  volumes  of  the  Students'  Series  are  in  use  as  Text-Books 
in  leading  Law  Schools  throughout  the  United  States. 

In  planning  this  series  of  law  bonis  for  students,  you  have  rendered  a  very  great  ser- 
vice, not  only  to  Is  tht  mselves,  but  also  to  the  profession.     There  hat 
greater  obstacle  to  ali  efforts  for  a  higher  standard  of  legal  education  than  tht 
such  books.  —  Prof.  William  G.  Hammond,  Law  Department,  Iowa  State  University. 

If  tir  ding  volumes,  so  full  of  instruction,  are  estimated  at  their  (rue 

value,  their  sal  11  not  be  confined  to  tht  !<  gal  profession  alone. —  Hon. 

John  Crowkll,  LL.D.,  President  of  Ohio  State  and  Union  Law  College. 

The  plan  needs  only  development  to  rentier  it  popular,  and  the  volumes  now  out  ore 
Hon  of  it.  .   Either  volume  would  serve  the  purposes  of  a  mature 

lawyer,  desiring  to  refresh  his  memory  of  the  general  principles  of  the  subject. — 
N.  Y.  Times. 

VOLUMES    READY. 

BIGELOW   ON   TORTS. 
BIGELOW   ON   EQUITY. 
HEARD   ON   CRIMINAL    PLEADING. 
HEARD   ON    CIVIL   PLEADING. 
COOLEY   ON   CONSTITUTIONAL    LAW. 
LANGDELL'S   SUMMARY   OF   CONTRACTS. 
CURTIS   ON   UNITED    STATES   COURTS. 
MAY   ON   CRIMINAL    LAW. 
STIMSON'S   LAW   GLOSSARY. 
ROBINSON'S   ELEMENTARY   LAW. 
EWELL'S   MEDICAL   JURISPRUDENCE. 
STEPHEN'S   DIGEST   OF   EVIDENCE. 
ROBINSON   ON   FORENSIC   ELOQUENCE. 
BIGELOW   ON    BILLS.  NOTES,  AND   CHECKS. 

IN    ACTIVE    PREPARATION. 
BRYANT   ON   CODE   PLEADING. 
ABBOTT   ON   WILLS. 
PRICE    OF    EACH    VOLUME.  — CLOTH,    12.50   net;    Law   Sheep,    S3  00  net. 
Postage  10  cents  per  volume  additional 

1 


I.    BIGELOW    ON   TORTS. 

The  style  is  attractive,  the  definitions  concise  and  accurate,  and  the 
size  of  the  volume  so  moderate  as  to  he  equally  attractive  both  to  the 
practitioner  and  the  student.  —  From  Hon.  John  Crowell,  President  of  Ohio 
Stale  and  Union  Law  College,  Cleveland. 

AN  ELEMENTARY  TREATISE  ON  THE  LAW  OF  TORTS.  —  By  Mel- 
ville M.  Bigelow,  Ph.D.,  author  of  "  A  Treatise  on  the  Law  of  Estoppel/' 
"A  Treatise  on  the  Law  of  Fraud,"  and  Editor  of  "Leading  Cases  in  the 
Law  of  Torts,"  etc.  Fourth  edition,  revised  and  enlarged.  Cloth,  $2.50 
net ;  law  sheep,  $3.00  net. 

Among  the  best  books  for  the  use  of  students,  this  popular  manual  de- 
servedly takes  a  high  rank.  It  is  in  use  in  law  schools  all  over  the  country : 
for  example,  in  Boston  University  ;  University  of  Michigan;  Northwestern 
University,  Chicago;  University  of  Texas;  Washington  and  Lee  University; 
also  in  Canada  at  the  Osgoode  Hall  Law  School,  Toronto;  and  a  few  years 
since  was  adopted  as  a  text-book  in  the  famous  university  of  Cambridge, 
England.  Probably  no  other  students'  book  is  so  widely  used.  The  new  fourth 
edition  embraces  many  late  cases,  and  a  new  chapter  on  Malicious  Interference 
with  Contracts.  The  whole  book  has  been  carefully  revised,  and  many 
passages  rewritten. 

It  seems  to  rne  admirably  adapted  to  the  purpose  for  which  it  is  written.  Mr.  Bigelow 
is  very  happy  in  his  statement  of  legal  principles,  and  nowhere  so  much  so,  I  think,  as 
in  this  book.  —  Hon.  Thomas  M.  Cooleij. 

I  have  looked  through  this  volume  with  particular  interest,  from  my  own  expe- 
rience in  teaching  the  same  topic  ;  and  I  have  no  hesitation  in  saying  that  it  is  much 
better  fitted  for  the  student  than  any  work  on  Torts  we  have  had  before.  —  Prof.  William 
G.  Hammond. 

Mr.  Bigelow,  in  his  clear  and  succinct  statement  of  the  duties  of  individuals  toward 
each  other  as  members  of  society,  has  made  a  valuable  contribution  to  your  Law  Stu. 
dents'  Series.  —  Hon.  Morrison  R.  Waile,  Chief  Justice  of  the  United  Stoles. 

Its  methodical  arrangement  of  the  classes  of  Torts,  its  clear  style,  and  its  simple  man- 
ner of  treatment,  render  it  specially  useful  to  beginners  in  the  study  of  law.  —  James  B. 
Black,  Central  Law  School  oj  Indiana. 

It  is  the  product  of  real  thought  and  diligent  labor  ;  and  the  thought  and  labor  have 

1 11  too  skilfully  applied  not  to  result  in  a  substantial  addition  to  legal  literature. — 

Boston  Daily  Advertiser. 

II.     BIGELOW    ON   EQUITY. 

The  arrangement  and  treatment  of  the  subject  are  admirable.  — 
From  Samuel  D.  Davis,  Professor  of  L<nr,  Richmond  College,  Virginia. 

ELEMENTS    OF   EQUITY  FOR  THE  USE   OF    STUDENTS.  —  Hv    Mel- 

vii, i. k  M.  Bigelow,  Author  of  "  Law  of  Estoppel,"  "  Law  of  Fraud,"  etc. 
12mo.     Cloth,  $2.50  net;  law  sheep,  $3.00  net. 

A  clear  and  compact  treatise,  well  fitted  to  be  a  manual  of  a  student  of  law — 
Hon.  John  Bascom,  University  of  Wisconsin* 


I  have  examined  Bigelowon  Equity.  It  is  to  be  commended  for  its  clearness  and 
conciseness  of  statement.  I  regard  the  first  chapter  as  a  model.  The  doctrines  of  Tack- 
ing,  subrogation,  and  Marshalling,  found  in  Chapters  14,  19,  and  20,  are  more  easily 
comprehended  than  in  any  other  work  on  those  subjects  that  I  have  seen.  —  Hon  ,/.  //. 
Carpenter,  Dean  of  Law  Faculty,  University  of  Wisconsin. 

III.  HEARD    ON   CRIMINAL    PLEADING. 

It  deserves  an  important  position  among  the  text-books  in  every 
Lam  School  in  the  country.  — From  William  C.  Robinson,  Professor  of  Criminal 
Law,  fie,  YaU  <  'ollegt . 

THE  PRINCIPLES  OF  CRIMINAL  PLEADING.  -  By  Franklin  Fiskk 
Heard.     l2mo.     Cloth,  $2.50  net;  law  sheep,  £3.00  net. 

The  style  in  which  the  author  writes  is  admirably  adapted  to  the  object  to  be  accom- 
plished, —  it  is  clear  and  precise,  ami  the  whole  matter  is  kept  within  the  bounds  of  a 
manual.  —  ,V.   Y.  Tribune. 

An  interesting  manual,  thoroughly  supported  by  legal  authorities.  —  Hon.  John 
Basoom,  University  of  Wisconsin. 

IV.  HEARD    ON    CIVIL    PLEADING. 

An  admirable  companion  volume  to  his  "  Principles  of  Criminal 
Pleading,"  —  full,  clear,  concise*  —  From  Lemuel  Moss,  Indiana  University, 
Bloomii 

THE  PRINCIPLES  OF  PLEADING  IN  CIVIL  ACTIONS.  -  By  Franklin 
Fiske  Heard,  Author  of  'The  Principles  of  Criminal  Pleading."  12mo. 
Cloth,  82.50  net;  law  sheep,  83.00  net. 

He  has  taken  the  leading  and  established  rules,  and  illustrated  them  by  ample  cita- 
tions from  ancient  and  modern  learning.  Whoever  shall  make  himself  thoroughly 
acquainted  with  those  rules  as  here  laid  out  and  enforced,  cannot  fail  of  being  a  good 
pleader.  —  Boston  ( 'ourier. 

Under  whatever  system  of  statutory  procedure  a  law  student  may  design  to  practise, 
he  will  find  it  equally  necessary  to  become  familiar  with  the  principles  of  common  law 
pleading.  Mr  Heard's  work  is  a  plain  and  clear  guide  to  these,  and  its  silence  in  regard 
to  man]  of  the  formal  and  adventitious  technicalities  of  the  older  English  system  will 
commend  it  to  American  readers.  —  Son,  Simeon  /•.'.  Baldwin,  Law  Department  of  Yale 
Colter//'. 

V.  COOLEY    ON   CONSTITUTIONAL    LAW. 

No  Lawyer  can  afford  to  be  without  it,  and  every  voter  ought  to 
have  it.  —  From  Hon.   .1.    II     Carpenter,    Dean   of    I-  University  of 

sin. 

THE  GENERAL  PRINCIPLES  OF  CONSTITUTIONAL  LAW  IN  THE 
UNITED  STATES  OF  AMERICA.  —  By  Thomas  M.  Coolbt,  Author 
of  "A  Treatise  on  Constitutional  Limitations."    Second  edition,  by  Alexis 

C.    Angell,   of   the   Detroit   Bar.       12mo.      Cloth,  $2.50   net;    law  sheep, 

$3.00  net. 


The  new  edition  contains  large  additions.  In  its  preparation,  the  editor, 
while  aiming  to  keep  the  book  a  manual,  and  not  to  make  it  a  digest,  has  treated 
briefly  all  important  points  covered  by  the  cases  decided  up  to  a  very  recent 
date.  He  made  such  changes  in  the  text  and  notes  as  had  been  required  by 
the  many  important  decisions  upon  constitutional  law  rendered  in  the  last  ten 
years. 

A  masterly  exposition  of  the  Federal  Constitution  as  actually  interpreted  by  the 
courts.  .  .  .  This  book,  of  moderate  dimensions,  should  be  placed  in  every  student's 
hands.  — Hon.  P.  Bliss,  Dean  of  Law  Department,  State  University  of  Missouri. 

It  is  worthy  of  the  reputation  of  the  distinguished  author.  It  is  the  best  book  on  the 
subject  to  be  placed  io  the  hands  of  a  student,  and  is  a  convenient  book  of  reference  for 
any  one.  —  Prof.  Manning  F.  Force,  LL.D.,  Cincinnati  Law  School. 

It  ought  unquestionably  to  be  made  the  basis  of  a  course  of  instruction  in  all  our 
higher  schools  and  colleges.  —Hon.  John  F.  Dillon,  Professor  of  Columbia  Law  School, 
New  York. 

It  is  a  work  of  great  value,  not  only  for  students  in  institutions  of  learning,  but  as 
well  for  the  lawyer,  to  whom  it  supplies  at  once  a  Treatise  and  a  Digest  of  Constitutional 
Law.  —  Henri/  Hitchcock,  Dean  of  the  St.  Louis  Law  School. 

Clearly  and  compactly  written,  and  the  general  arrangement  well  adapted  for  students' 
use.  —  Hon.  Sintroit  E.  Baldwin,  Law  Department  of  Yale  College. 

I  have  examined  it  with  great  care,  comparing  it  closely  with  the  old  edition,  and 
testing  it  in  various  points.  As  a  result,  it  gives  me  pleasure  to  state  that  we  shall  use 
the  book  both  in  the  courses  in  constitutional  history  and  law  in  the  collegiate  depart- 
ment, and  iii  one  of  the  classes  in  the  law  school.  The  work  of  the  editor  of  the  new 
edition,  Mr.  Angell,  has  been  done  with  the  exactness  and  cure  which  an  intimate 
acquaintance  with  him,  as  a  classmate  at  the  University  of  Michigan,  led  me  to  expect  in 
whatever  he  undertook.  Judge  Cooley  is  fortunate  in  having  so  excellent  an  editor  for 
the  revision.  —  Letter  from  George  W.  Knight,  Professor  of  International  and  Consti- 
tutional Law,  Ohio  State  University. 

Your  name  alone  as  its  author  is  a  sufficient  guarantee  of  its  high  character  and  gen- 
eral usefulness,  not  only  for  the  use  of  the  students  of  law  schools  and  other  institutions 
of  learning,  for  which  it  was  originally  prepared,  but  also  for  members  of  the  bar.  The 
matters  discussed  are  stated  so  concisely  and  clearly  as  to  be  of  great  benefit  for  ready 
reference.  The  edition  sent  me  seems  to  have  all  the  late  cases  cited  and  referred  to ; 
and  Mr.  Angell  seems  to  have  been  very  careful  aud  successful  in  making  the  changes 
from  the  first  edition,  aud  adding  additional  notes. — Hon.  Albert  11.  Horton,  Chief- 
Justice  of  the  Sn  iii  line  Court  of  Kansas,  to  Judge  Cooley. 

VI.      LANG-DELL'S      SUMMARY      OF      CON- 
TRACTS. 

No  man  competent  to  judge  can  read  a  page  of  it  without  at  once 
recognizing  the  hand  of  a  great  master.  Every  line  is  compact  of 
ingenious  ami  original  thought.  —  American  Law  Review. 

A  SUMMAKY  OF  THE  LAW  OF  CONTRACTS.  —  By  C.  C.  Langdell, 
l>ane  Professor  of  Law  in  Harvard  University.  Second  edition.  12mo. 
Cloth,  $2.50  net ;  law  sheep,  $3.00  net. 


VII.  CURTIS  ON  UNITED  STATES  COURTS. 

A  work  of  the  highest  standard  on  tin;  subject  treated  —Bolton  Po  ' 

CURTIS  ON  THE  UNITED  STATES  COURTS.  —Jurisdiction,  Practice,  and 
Peculiar  Jurisprudence  of  the  Courts  of  the  United  States.  By  BENJAMIN 
1!.  I'rRTis.  LL.D.  Edited  l>v  George  Ticknor  Curtis  and  Benjamin 
11.  Ci  ktis.     I.ino.     Cloth,  $2.50  net;  law  sheep,  $3.00  utt. 

These  lectures  were  delivered  by  the  late  Judge  Curtis  to  a  cla.-s  of  students 
in  the  Harvard  Law  School,  in  the  academic  year  1872-73. 

Cannot  tail  to  be  of  great  service  to  the  student  in  the  prosecutiou  of  his  legal  studies. 
Chicago  Legal  News. 

It  is  by  far  the  best  epitome  of  that  extensive  subject,  and  the  clearness  of  the  style 
and  orderly  arrangement  of  the  learned  author  will  especially  recommend  it  to  students. 
Hon.  Edmund  II  Bennett,  Dean  of  School  "/Line,  Boston  University. 

There  is  not  to-day  in  existence  so  admirable  a  treatise  ou  United  States  courts  and 
their  jurisdiction  as  this  little  book.  — Milwaukei  Republican. 

VIII.  MAY'S    CRIMINAL   LAW. 

I  have  carefully  examined  and  read  through  May's  Criminal  Law. 
This  work  i*  certainly  one  of  distinguished  merit.  Its  definitions  and 
statements  of  principles  are  clear  and  concise.  Its  discussions  of  doubt- 
ful or  controverted  points  are  calm  and  scholarly.  The  cases  to  which 
it  refers  embrace  the  most  recent  English  and  American  decisions,  ami 
therefore,  both  as  a  Bade  mecum  for  the  criminal  lawyer  and  as  a  text- 
book for  the  student,  it  must  at  once  take  a  high  position  in  the 
literature  of  that  branch  of  jurisprudence.  —  From  William  C.  A 
Professor  of  Criminal  Law,  >■/>-,,  Yale  C 

THE  LAW  OF  CRIMES.  -  My  J.  Wilder  May,  chief  Justice  of  the 
.Municipal  Curt  of  the  City  of  Boston.  Second  edition,  edited  by  Joseph 
Henry  Hkai.k,  Jr.,  Assistant  Professor  of  Law  in  Harvard  University. 
12mo.     Cloth,  $2.50  net;  law  sheep,  $3.00  net. 

This  new  edition  of  Judge  May's  deservedly  popular  work  contains  large 
additions.  The  editor  states  in  the  preface  that  the  original  plan  included  no 
discussion  of  the  subjects  "t  Criminal  Pleading  and  Practice,  but  it  was  found 
that  it  would  lie  better  adapted  to  the  use  of  student-   if  tl  ijects  were 

brietly  considered,  and  this  has  accordingly  been  done.  Much  has  also  been 
added  to  the  first  chapter,  which  contain-  the  general  principles  underlying  the 
criminal  law. 

It  is  to  lie  especially  commended  n>r  its  clear  and  concise  definitions,  as  also  for  its 
citation-  .,f   lea  lirectlj    upon   the  matter  under  discussion.  — From  J.  II. 

Carpen'.  .,;/,/  ,,/  H',',, 

It  is  ict  a  mere  synopsis,  but  an  interesting  discussion,  quite  full  enough  to  give 
•it  a  rrue   view  of  the  subject,  and   minute  enough   to  be  a   useful   handbook  to 
the  practitioner  —A 


IX.     STIMSON'S    LAW    GLOSSARY. 

It  is  a  valuable  addition  to  the  Students'  Series,  and  I  shall  cordially 
recommend  it  as  a  lirst  dictionary  to  our  students.  —  Hon.  Edmund  H. 

Bennett t  Dean  of  School  of  Law,  Boston  University. 

GLOSSARY  OF  TECHNICAL    TERMS,   PHRASES,   AND    MAXIMS    OF 
THE  COMMON   LAW.  —  By  Frederic  Jesup  Stimson.     12mo.     Cloth. 
$2.50  net ;  law  sheep,  $3.00  net. 
A  concise  Law  Dictionary,  giving  in  common  English  an  explanation  of  the 

words  and  phrases,  English  as  well  as  Saxon,  Latin,  or  French,  which  are  of 

common  technical  use  in  the  law. 

Specimen  of  the  Definitions    in  Sthnson's  Law  Glossary. 


Dower.  The  life  estate  which  the  widow 
has  in  her  husbancTs  lands  on  his  death  ; 
usually  one-third  part  of  any  lauds  of 
which  he  was  seised  in  an  estate  of  in- 
heritance at  any  time  during  the  mar- 
riage, if  the  husband's  estate  in  such  lands 
was  such  that  the  common  issue  might 
haye  inherited.  Dower  ad  ostium 
ecclesise,  I.  (at  the  church  door)  was 
anciently  where  the  husband  specifically 
endowed  his  wife  with  certain  of  his  own 
lands ;  or  of  his  father's  lands,  Dower 
ex  assensu  patris.  If  this  was  not 
done,  she  was  assigned  her  Reason- 
able dower,  Dos  rationabilis,  I., 

The  information  crowded  by  Mr.  Stimson  in  his  duodecimo  volume  of  a  little  more 
than  three  hundred  pages,  is  \ery  great;  his  explanations  are  given  with  remarkable 
brevity,  and  legal  technicalities  are  avoided  so  completely  as  to  make  the  work  a  valu- 
able and  welcome  supplement  to  the  common  English  Dictionaries.  —Boston  Daily 
Advertiser. 


Dower  by  the  common  law,  a  third 
part  of  the  husband's  land.  Dower  by 
custom  :  varied  in  amount  according 
to  local  usage  Dower  de  la  pluis 
belle,  Jr.  (of  the  fairest  part):  where 
the  wife  was  endowed  of  socage  lands 
held  by  her  as  guardian.  Writ  of 
dower  or  Writ  of  right  of  dower  : 
an  old  real  action  lying  for  a  widow 
against  a  tenant  who  had  deprived  her  of 
part  of  her  dower.  Dower  unde  nihil 
habet,  I. :  a  similar  writ  which  lay  for 
a  widow  to  whom  no  dower  had  been 
assigned. 


X.     ROBINSON'S    ELEMENTARY   LAW. 

The  book  is  convenient  to  the  instructor  who  will  use  it  as  a  text  to 
be  amplified  in  his  lectures,  and  valuable  to  the  student  who  will  con- 
sult the  references.  —Prof.  M.  F.  Force,  LL.D.,  Cincinnati  Law  School. 

ELEMENTARY    LAW.— By  William   C.   Robinson,   LL.D.,  Professor  of 

Elementary  Law  in   Yale  College.     l2mo.    Cloth,   $2.50  net;    law  sheep, 

$3.00  net. 

It  contains  a  statement  of  the  principles,  rules,  and  detinitions  of  American 
Common  Law,  both  civil  and  criminal,  arranged  In  logical  order,  with  refer- 
ences to  treatises  in  which  such  delhiitiniis,  rules,  and  principles  are  more 
extensively  discussed. 

This  volume  is  used  largely  in  law  schools,  and  the  author  bus  a  special 
knowledge  of  the  requirements  of  the  student,  being  a  leading  instructor  at  the 


Law  School  of  Yale  College.  The  student  who  intelligently  studies  this  work 
may  store  his  mind  with  lucid  and  concise  statements  of  the  leading  topics  of 
law;  and,  having  been  grounded  in  this  primary  information,  a  course  of  read- 
ing is  laid  down,  including  the  best  text-books  together  with  the  special  por- 
tions of  the  works  which  relate  to  the  subjects  in  question.  It  may  also  be 
used  with  great  benefit  as  a  review  book  for  examinations.  The  purpose  of 
this  most  useful  elementary  work  cannot  better  be  explained  than  by  here 
reprinting,  from  page  33,  Section  01,  relating  to  Transfer  of  Estates:  — 

Section  61.  Of  the  Ownership  and  Transfer  of  Estates. 
An  estate  may  belong  to  one  person  or  to  several  persons  collectively.  It 
may  also  be  transmitted  from  one  person  to  another,  or  lesser  estates  may  be 
carved  out  of  it  by  the  owner  and  be  granted  to  others.  The  relation  between 
co-owners  or  successive  owners  of  the  same  estate,  or  between  persons  one  of 
whom  derives  his  estate  from  the  other,  is  known  as  privity  oft  Mute. 
Read  2  131.  Comm.,  pp.  107,  17!',  200,  201. 

1  Wash.  K.  P.,  [?.  i.  Ch.  xiii,  Sec.  1,  §  1. 

2  Wash.  i:.  P.,  B.  ii,  Ch.  i.  Sec.  1,  §  16. 
1  Greenl.  Ev.,  §§  189,  523. 

The  principles  are  admirably  stated.  —  Albany  Lair  Journal. 

It  would  be  a  benefit  to  every  law  student  to  put  this  volume  into  his  hand,  and  make 
it  his  vade  mecum  throughout  the  whole  of  his  professional  studies.  —  Boston  Advertiser. 

It  might  worthily  be  adopted  BS  a  text-book  tor  every  seuior  class  in  a  male  or  female 
college,  aud  will  be  found  an  invaluable  accession  to  every  public  and  private  library.  — 
.v<  w  York  World. 

XI.  EWELL'S  MEDICAL  JURISPRUDENCE. 

It  is  excellently  done.  I  wish  it  might  be  read  by  every  student  of 
law  as  well  as  by  every  student  of  medicine.  —  Prof.  Henry  Wade  Rogers, 
University  of  Michigan. 

A  MANUAL  OF  MEDICAL  JURISPRUDENCE  FOR  THE  USE  OF 
STUDENTS  AT  LAW  AND  OF  MEDICINE.  —  By  Marshall  D.  Ewbll, 

M.D..  LL.D.,  of  the  Union  College  of  Law.  Chicago      l2mo.     Cloth,  82.50 
net ;  law  sheep,  S3.00  n<  t. 

Mr.  Ewell  has  endeavored  to  produce  a  work  which,  within  a  mi 
p  its,  States  all  the  leading  fact-  and   principles  of  the  science  concisely  and  yet 
clearly.     In  it  will  be  found  the  substance  of  all  the  principles  stated  in  the 
more  voluminous  and  expensivi  works. 

XII.  STEPHEN'S    DIGEST  OF    EVIDENCE. 

Shorl  a*  it  is,  I  believe  it  will  be  found  to  contain  practically  tbe 
whole  law  of  tbe  subject.—  The  author. 

A  DIGEST  OF  THE  LAW  OF  EVIDENCE.  —  By  Sir  Jamka  FrrzjAMKS 
Sn  inr.N.  K.c.s.l.,  :,  Judge  of  tbe  High  Coutl  of  Justice,  Queen's  Bench 
Division.     From  the  Fourth  English  Edition.     With  Notes  and  Additional 


Illustrations  to  the  Present  Time,  chiefly  from  American  Cases,  including 
those  of  John  Wilder  May,  late  Chief  Justice  of  the  Municipal  Court  of 
the  City  of  Boston,  author  of  "The  Law  of  Insurance,"  etc.  12mo.  251 
pages.     Cloth,  $250  net;  law  sheep,  $3.00  net. 

A  full  and  exact  reprint  of  the  Fourth  (latest)  English  Edition,  revised  by 
the  author,  with  references  to  American  cases.  Many  editions  of  the  work  have 
been  published  in  America,  but  the  present  will  be  found  to  be  the  most  useful, 
as  it  includes  the  very  valuable  notes  prepared  by  the  late  John  Wilder  May, 
author  of  "The  Law  of  Crimes,"  etc.,  together  with  a  selection  of  cases  and 
references  supplementing  his  important  editorial  work. 

XIII.  ROBINSON'S    FORENSIC    ELO- 

QUENCE. 

This  is  a  book  which  no  student  of  law  can  afford  to  pass  by  with- 
out a  thorough  study  of  it.  It  is  also  a  work  which  no  practising 
lawyer  who  understands  the  trial  of  causes  and  is  not  already  an 
acknowledged  leader  in  the  courts,  can  afford  not  to  read  and  read 
again.  —  American  Law  Review. 

FORENSIC  ELOQUENCE,  A  MANUAL  FOE,  ADVOCATES. —By  William 
C.  Robinson,  Professor  of  Elementary  Law  in  Yale   College,  author  of 
"The  Law  of    Patents  for  Useful    Inventions,"    "Elementary   Law,"  etc. 
12mo.     Cloth,  $2.50  net;  law  sheep,  $3.00  net. 
A  new  and  suggestive  work  on  the  Duties  and  Functions  of  the  Advocate. 

XIV.  BIG-ELOW'S    BILLS,    NOTES,    AND 

CHECKS. 

AN  ELEMENTARY  TREATISE  ON  THE  LAW  OF  BILLS,  NOTES, 
AND  CHECKS  -  By  Melville  M.  Bigelow,  Ph.D.,  author  of  "An 
Elementary  Treatise  on  the  Law  of  Torts,"  etc.  12mo.  Cloth,  $2.50  net; 
law  sheep,  $3.00  net. 

XV.  BRYANT    ON    CODE    PLEADING-. 

PRINCIPLES  OF  CODE  PLEADING  FOR  THE  USE  OF  STUDENTS. 
By  Hon.  Kdwin  E.  Bktant,  Dean  of  Law  Department  of  State  Univer- 
sity of  Wisconsin.  12mo.  Cloth,  $2.50  net;  law  sheep,  $3.00  net.  (In 
preparation.) 

XVI.  ABBOTT'S    LAW    OF    WILLS. 

ELEMENTS  OF  THE  LAW  OF  WILLS.  — By  Nathan  Abbott,  Pro- 
fessor of  Wills,  etc,  at  Northwestern  University,  Chicago.  12mo.  Cloth, 
$2.50  net;  law  sheep,  $3.00  net. 


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